Citation Nr: 1804653 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 05-38 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), on an extraschedular basis due to service-connected disabilities, prior to March 5, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1978 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction over the matter was subsequently transferred to the RO in New York, New York. The Board observes that in June 2007, the Veteran presented testimony at a hearing before a Veterans Law Judge who is no longer employed by the Board. In May 2011, July 2011, and June 2012, the Board sent letters to the Veteran's last known address informing him of this fact and of his options for another hearing. Although these letters were returned to the Board as undeliverable, a copy of each letter was also sent to the Veteran's representative. In addition, the August 2012 and May 2013 decisions noted that the Board presumed the Veteran did not want an additional hearing. Moreover, to date, neither the Veteran nor his representative has requested such a hearing. In May 2013, the Board granted a separate 10 percent evaluation for radiculopathy of the right lower extremity, and granted a 20 percent evaluation for radiculopathy of the left lower extremity effective from January 7, 2008. The Board also determined that the issue of entitlement to a TDIU was raised by the record, as part of the Veteran's claims for increased ratings for radiculopathy of the left and right lower extremities, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the matter for further development. During the course of the Board remand for evidentiary development for the TDIU claim raised by the record, the Veteran filed a claim for TDIU on March 5, 2014. He subsequently submitted VA Forms 21-8940 in April 2014, May 2014, and June 2014. The RO subsequently denied entitlement to a TDIU in October 2014. In May 2015, the Board again remanded the issue of entitlement to a TDIU on an extraschedular basis, so that the matter could be referred to the Director of Compensation Service for consideration. In August 2015, the Director issued an opinion denying entitlement to a TDIU on an extraschedular basis. Subsequently, in a September 2015 rating decision, the RO granted entitlement to TDIU on a schedular basis effective from March 5, 2014. In October 2016 the Board once more remanded the issue of entitlement to a TDIU on an extraschedular basis to obtain additional Social Security Administration records, as well as a supplemental decision from the Director of Compensation Service regarding TDIU on an extraschedular basis prior to March 5, 2014. These actions have been completed and the Board finds substantial compliance with its remand directives. Accordingly, the Board will address the appeal herein. Stegall v. West 11 Vet. App 268 (1998). This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) electronic claims processing systems. The Board notes that additional evidence was associated with VBMS after the most recent Supplemental Statement of the Case (SSOC). However, in September 2016, the Veteran submitted a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to March 5, 2014, the Veteran's service-connected disabilities were not sufficient to render the Veteran unemployable. CONCLUSION OF LAW The criteria for entitlement to a TDIU, on an extraschedular basis, prior to March 5, 2014, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § § 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment, 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." Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director, Compensation and Pension Service, for extra-schedular consideration initially. 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim for TDIU on an extra-schedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Factual Background and Analysis As noted above, the issue of a TDIU arose out of the Veteran's claim for an increased evaluation for his service-connected back disability, originally adjudicated in a January 2005 rating decision. While this claim was on remand as a result of the May 2013 Board decision, the Veteran filed a claim for a TDIU, as well as increased evaluations for his service-connected disabilities, on March 5, 2014. This claim for TDIU was subsequently granted by the RO in September 2015, based on the increased evaluations for the Veteran's service connected disabilities, which allowed him to meet the schedular standard for a TDIU. The Veteran and his representative assert that an extraschedular TDIU should be awarded for the period on appeal prior to March 5, 2014. The Veteran has submitted several statements asserting that his service-connected back disability, with resulting radiculopathies, and his ankle disability have gotten worse, particularly as he has aged, and that they prevent him from working as an electrician. The Veteran stated that he was unable to bend, crawl, climb ladders, or be on his feet for long periods of time, and these were the very actions required to work as an electrician, which was his previous occupation. Additionally, the Veteran's representative stated that the Veteran was awarded social security disability (SSD) in 2006, dated to November 2002, as a result of his back and ankle disabilities. The Veteran is service-connected for degenerative disc disease of the lumbar spine, rated as 10 percent disabling from September 2004 and 20 percent disabling since March 2014; radiculopathy of the left lower extremity, rated as 20 percent disabling since January 2008; radiculopathy of the right lower extremity rated as 10 percent disabling from October 2012 and as 20 percent disabling since March 2014; and left ankle synovitis rated as 10% disabling from May 2003. His combined disability rating totals are: 10 percent disabled from May 12, 2003, 20 percent disabled from September 28, 2004, 40 percent disabled from January 7, 2008, 50 percent disabled from October 20, 2012, and 60 percent disabled from March 5, 2014. As the Veteran's service-connected disabilities did not meet the schedular requirements for a TDIU, the Board requested opinions from the Director of Compensation Service regarding a TDIU on an extraschedular basis. Opinions were provided in August 2015 and March 2017. Both reviewers reviewed the Veteran's file and concluded that the evidence did not support the Veteran's contention that his service connected disabilities alone prevented him from obtaining employment, or had prevented him from obtaining employment in the past. In the May 2017 and December 2017 informal hearing presentations, the Veteran's representative asserted that the "veteran met the standards for SSD...granted in 2006 which held an effective date of November 2, 2002. At the time of the SSD application the veteran was not service- connected for the conditions that would ultimately conclude that he was entitled to Individual Unemployability (IU). However, the disabilities did not spontaneously manifest in 2014 at the grant of the IU. Those disabilities were recognized by the Social Security Administration dated back to 2002 and thus an earlier effective date should be granted for the veteran in regards to his IU." The representative is mistaken. In September 2006, the Administrative Law Judge (ALJ) for the Social Security Administration rendered a decision denying the Veteran's claim for social security disability. In that decision, the ALJ wrote, "Based on the vocational expert's testimony, the undersigned concludes that if the claimant stopped his substance abuse, he would be capable of making a successful adjustment to work...A finding of "not disabled" is therefore appropriate...Because the claimant would not be disabled if he stopped the substance abuse, the claimant's substance abuse disorder(s) is a contributing factor material to the determination of disability. Thus, the claimant has not been disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of this decision." The Board notes that the ALJ relied on a thorough review of the Veteran's medical records. While acknowledging the Veteran's (service-connected) degenerative joint disease of the lumbar spine and the left ankle disability, the ALJ noted that the Veteran's first hospitalization for detoxification and rehabilitation was in August 1998, and that the Veteran reported five subsequent hospitalizations for detoxification and rehabilitation due to cocaine and alcohol use. In addition, the medical records showed attempted admissions for drug and alcohol detoxification and rehabilitation in October 2005 and November 2005. The Board is not bound by the decision of the Social Security ALJ; however, the Board finds the decision probative. The Board's own thorough review of the evidence finds that the Veteran's employment history has several inconsistencies. The record shows that the Veteran had multiple admissions and hospitalizations for drug and alcohol abuse, which resulted in several periods of unemployment since 1998. By the Veteran's own statement, he worked steadily until the 1990's when he reported that he "quit in 1990 due to my addiction to drugs." However, in the March 2015 VA mental health examination, the Veteran stated that he worked from 1983 to 2009, with a brief retirement in 1997 to 2001 due to his physical disabilities. As stated above, a TDIU can only be granted based on a Veteran's service-connected disabilities. The Veteran's diagnoses of drug and alcohol dependence are not service-connected and therefore, cannot form the basis of a TDIU. The evidence of record does not show that prior to March 5, 2014 the Veteran's service-connected disabilities, alone, caused the Veteran from obtaining or keeping employment. Based on the foregoing, the Board finds that the Veteran's entitlement to a TDIU, on an extraschedular basis, prior to March 5, 2014, is not warranted. ORDER A TDIU prior to March 5, 2014 on an extraschedular basis, is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs