Citation Nr: 1804593 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 10-36 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from May 1982 to May 1985. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a November 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2010 decision since issued, the Board determined that the issue of entitlement to a TDIU was "part and parcel" of the Veteran's increased-rating claim then on appeal and, consequently, referred this derivative TDIU claim to the Agency of Original Jurisdiction (AOJ) for appropriate development and consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Subsequently, in January 2011, the Veteran submitted his formal TDIU application (VA Form 21-8940). However, in a May 2012 rating decision, the RO denied his claim for a TDIU. In April 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Later that year, in August 2014, the Board remanded this TDIU claim for further development, including affording the Veteran a VA general medical examination reassessing the severity of his service-connected disabilities. In a December 2016 Supplemental Statement of the Case (SSOC) since issued, on remand, the Agency of Original Jurisdiction (AOJ) continued to deny this derivative TDIU claim, so this claim is again before the Board for further appellate review. In a December 2017 rating decision also issued on remand, however, a local Decision Review Officer (DRO) increased the rating from 20 to 50 percent for the Veteran's service-connected status-post right carpal tunnel release and right index finger retinacular cyst removal, retroactively effective as of March 25, 2016. As will be explained, the issue of entitlement to a TDIU on an extra-schedular basis, prior to March 25, 2016, requires still more development before the Board can make a determination concerning this earlier point in time, so the Board is remanding this portion of the TDIU claim to the AOJ. But the Board, instead, is going ahead and deciding - indeed granting - the TDIU claim to the extent it is additionally predicated on the Veteran's unemployability since March 25, 2016. FINDING OF FACT The evidence is at least in equipoise regarding whether the Veteran's service-connected disabilities have precluded him from obtaining or maintaining substantially gainful employment since March 25, 2016. CONCLUSION OF LAW The criteria are met for a TDIU as of March 25, 2016. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A TDIU claim is a type of increased-rating claim. See Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim). For increased-rating claims, so including for a TDIU, 38 U.S.C. § 5103(a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that Veterans Claims Assistance Act (VCAA) notice need not be veteran specific, or refer to the effect of the disability on "daily life"). Once service connection is granted, Courts have held that the claim is substantiated; additional notice is not required, and any defect in the notice is not prejudicial. See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In a November 2010 letter, the Veteran was informed of what evidence was required to substantiate his claim for a TDIU, and of his and VA's respective responsibilities in obtaining evidence. Additionally, that letter notified him of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, he was afforded ample notice of the applicable laws and requirements for substantiating his claim for a TDIU in the December 2016 SSOC. He has had ample opportunity to respond or supplement the record and has not alleged that any notice was inadequate as concerning this derivative claim. Therefore, the Board finds that VA's duty to notify has been satisfied, particularly when also considering the Board is partially granting this claim for the succeeding period since March 25, 2016. Regarding the duty to assist, the Board sees that the claims file contains relevant post-service medical records and the Veteran's written statements and the transcript of his hearing testimony. Neither he nor his representative has identified, nor does the record otherwise indicate, any other evidence relevant to this claim that has not been obtained and that is obtainable. Furthermore, he was afforded VA compensation examinations assessing and reassessing the severity of his service-connected disabilities, including their functional impact to, in turn, assist the Board in determining whether he is unemployable on account of them. Opinions were provided in response to those examinations and others in support of his claim. Certainly, these examination reports and the other medical records in the file, particularly when considered collectively, so in the aggregate, provide the information needed to at least partly decide this appeal in his favor. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate this claim. Therefore, no further assistance to the Veteran with the development of evidence is required, except to the extent discussed in the REMAND. II. TDIU To establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met. Id. But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities. In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Here, the Veteran meets the schedular criteria for a TDIU, as of March 25, 2016, because the combined rating of his service-connected disabilities is at 70 percent or more since that date. 38 C.F.R. § 4.16(a). He reported last working full-time in February 2009. See January 2011 VA Form 21-8940 (formal TDIU Application). His education includes a high school diploma and completion of truck driving training. Id. The Veteran has been afforded VA compensation examinations addressing the nature and severity of his service-connected disabilities, which all consistently reflect that his right upper extremity limitations have "impacted significantly on his gainful employability" and "his daily activities of life." See, e.g. August 2009 VA Examination Report. Most recently, in March 2016, he was afforded a VA general medical examination. He reported an employment history after service of working in a hardware store, a pump irrigation warehouse, operating a tow truck for AAA, and then auto transport, having been employed in the latter two jobs for 15 years. Following review of the evidence of record, including the Veteran's lay statements, the examiner concluded that the Veteran cannot perform any of his prior jobs. Moreover, the examiner indicated that, because of the service-connected disabilities, the Veteran could only function "at the sedentary physical level of employment," but, even this, would be significantly limited. The examiner found that: (1) the Veteran would be unable to use vibrating and impact tools; (2) jobs requiring repetitive firm grasping and handling, or fine fingering, are not feasible; (3) sooty or fouled atmospheric conditions would provide difficult due to the Veteran's asthma; and (4) heavy manual labor would not be feasible. Essentially, in the Board's estimation that VA examiner has indicated the Veteran is in actuality only capable of marginal employment. Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also however may be held to exist on a facts-found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.18. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment," noting the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16 (a). See also Moore, 1 Vet. App. at 358. When considering this legal precedent, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim. In this circumstance the Board must resolve this reasonable doubt in the Veteran's favor and grant the claim. That is to say, it is as likely as not that his service-connected disabilities preclude him from securing or maintaining employment that could be considered substantially gainful versus just marginal in comparison, when also considering his level of education and prior work experience and training. Any notion of there still being the possibility of less physically demanding labor (i.e., sedentary work) seems unrealistic given the type of jobs he has had in years past and for which he has been trained. Undoubtedly, further medical inquiry can be undertaken with a view towards getting more information concerning this. But the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for versus against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). Moreover, this TDIU determination ultimately is for the VA adjudicator to make, not instead medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10, but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2."). It is currently the Veteran Benefits Administration's (VBA's) policy that: If the facts of the case require VA to examine the Veteran [as part of his or her TDIU claim], do not ask the examiner to opine as to whether or not the Veteran is unemployable due to his or her service-connected disabilities. The responsibility for this decision rests solely with the rating activity. VA should request that the examiner comment instead on the functional impairment caused solely by the service-connected disabilities. VBA Fast Letter 13-13 (Jun. 17, 2013) (citations omitted) (emphasis added). While Fast Letters are not binding on the Board, the information contained therein is consistent with case law, as discussed above. Floore, 26 Vet. App. at 381. As the Court held in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). There is no such unfavorable evidence in this instance, at least since March 25, 2016. Prior to March 25, 2016, however, as a matter of law, the Veteran does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). But as already alluded to, for even this preceding period prior to March 25, 2016, there remains the possibility of receiving a TDIU - albeit only instead on an extra-schedular basis under the special provisions of § 4.16(b). This additional consideration will be discussed in the REMAND portion of this decision. ORDER A TDIU is granted, effective March 25, 2016, subject to the laws and regulations governing the payment of VA compensation. REMAND As for the immediately preceding period prior to March 25, 2016, which also is at issue in this appeal, the Board cannot grant a TDIU on an extra-schedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular criteria under 38 C.F.R. § 4.16(a), to the Director of the C&P Service for extra-schedular consideration under the special provisions of § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, this portion of the claim is REMANDED for the following action: 1. Submit the claim to the Director of the C&P Service or appropriate designee for consideration of whether a TDIU should be granted prior to March 25, 2016, on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). 2. If this portion of the claim remains denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this remaining portion of the claim. The Veteran has the right to submit additional evidence and argument concerning this portion of the claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This remaining portion of the claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs