Citation Nr: 1805902 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-16 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), from October 30, 2014. 2. Entitlement to a TDIU prior to October 30, 2014, on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) (2017). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2014, the Board remanded the issue of entitlement to an increased rating for transient cerebral ischemia with left-sided weakness. In April 2017, the Board denied an increased rating for transient cerebral ischemia and found that the issue of entitlement to a TDIU had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Board then remanded the issue of entitlement to a TDIU. As pointed out by the Board in the April 2017 decision, while the Veteran was service-connected for transient cerebral ischemia with right-sided weakness, the March 2011 rating decision made clear that he was being service-connected for transient cerebral ischemia with left-sided weakness. The issue of a TDIU prior to October 30, 2014, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT From October 30, 2014, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, from October 30, 2014, the criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to the only issue decided herein, further discussion of the VCAA is not necessary at this time. Merits VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from securing or following any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the period from October 30, 2014, the Veteran is service-connected for transient cerebral ischemia with residuals of urinary frequency (currently rated 40 percent), bilateral visual field defect (currently rated 30 percent), transient cerebral ischemia with residual left-sided weakness (currently rated 20 percent), and diastolic hypertension (currently rated 10 percent). His combined rating from October 30, 2014, forward, is 70 percent. He is thus eligible for consideration for a TDIU on a schedular basis from October 30, 2014, forward. See 38 C.F.R. § 4.16(a). VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. The Veteran reported being employed as a laboratory analysist from January 1972 to June 2002. He also reported being employed in housekeeping from March 2006 until March 2010, working about three to four hours per day. He completed two years of college education. In his TDIU application, he stated that he became too disabled to work in January 2008. Records from the Social Security Administration (SSA) reveal that the Veteran has been found to be disabled for SSA purposes since January 2008 due to late effects of cerebrovascular disease. A June 2011 SSA decision notes that the Veteran had problems lifting things due to weakness and he lacked full bimanual dexterity. The decision ultimately concluded that due to the lack of manual dexterity, along with cognitive and psychiatric problems, all due to the Veteran's past stroke, he would be unable to perform even unskilled labor. A VA examination was conducted in October 2014. It was noted that the Veteran continued to complain of left-sided weakness. Further, urinary frequency was noted as daytime voiding interval as between two and three hours. Also, it was noted that during the night, the Veteran has to wake up five or more times per night to void. Left upper extremity weakness was described as mild. An October 2015 VA treatment record notes difficulty sleeping with urinary incontinence. Further, VA treatment records note continuous left upper extremity weakness. The Board notes that no medical opinion is dispositive of whether or not the Veteran is unemployable. Rather, the question of whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Entitlement to TDIU is based on an individual's particular circumstance. Rice, 22 Vet. App. at 452. Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib, 733 F.3d at 1354 ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Given the above, the Board finds a TDIU from October 30, 2014, is warranted. The evidence indicates that the Veteran has a limited work history in a laboratory, although he worked part-time as a housekeeper for a few years. The evidence also reflects that the Veteran has problems with frequent urination. Indeed, during the day, he urinates every two hours. Most notably, he has to wake up more than five times during the night to urinate. This led the Veteran to complain of his inability to sleep a full night. Quite obviously, his inability to sleep without having to wake up more than five times per night has some adverse impact on his ability to work. Indeed, the Board notes that his primary work history-as a laboratory assistant-would likely require him to be well-rested. Moreover, SSA found the Veteran to be disabled, at least in part, due to his left-sided weakness, which is service-connected. It was noted that the Veteran had problems lifting things due to his weakness and also reported dropping things. The SSA decision found that the Veteran lacked full manual dexterity. The above evidence reflects that the Veteran's service-connected disabilities would likely render him incapable of securing and maintaining substantially gainful employment in light of his education and occupational history, the latter of which is almost solely as a laboratory assistant. Thus, the evidence is at least evenly balanced as to whether his service-connected disabilities render him unable to obtain and maintain substantially gainful employment from October 30, 2014. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from October 30, 2014, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a TDIU from October 30, 2014, is granted, subject to controlling regulations governing the payment of monetary awards. REMAND Prior to October 30, 2014, the Veteran did not meet the requirements for a TDIU on a schedular basis. The Board notes that a total rating may nonetheless be granted on an extra-schedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). Here, the Veteran's service-connected disabilities do not meet the percentage requirements for a schedular TDIU at any time prior to October 30, 2014, as the Veteran's ratings were less than 60 percent for a single disability, or less than 70 percent combined with one disability rated at 40 percent, even considering those of common etiology as a single disability. However, the collective evidence of record reflects that the Veteran has been rendered unemployable since January 2008 (according to the Veteran and the SSA decision) and suggests that his service-connected disabilities may have rendered him unemployable prior to October 30, 2014. The Board thus finds that this case meets the criteria for consideration of an extra-schedular rating as there is competent evidence suggesting that the Veteran may be unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to October 30, 2014. See 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001) (holding that the Board could not award TDIU on an extra-schedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration). Therefore, the Board is remanding the remaining matter on appeal for additional development, to include referral of the claim to the appropriate first line authority, the Director, Compensation Service, for a determination as to the Veteran's entitlement to an extra-schedular TDIU from January 2008, the date the Veteran claims he was rendered unemployable. The Board notes that prior to October 30, 2014, the Veteran was service-connected for diastolic hypertension (rated 10 percent), transient cerebral ischemia (rated 10 percent from April 29, 2009 to March 22, 2010), transient cerebral ischemia with residual left sided weakness (rated 20 percent from March 22, 2010), and bilateral visual field defect (rated 30 percent, from July 22, 2013). Accordingly, the issue of entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) due to service-connected disabilities prior to October 30, 2014 is REMANDED for the following action: 1. Submit to the Director, Compensation Service, the matter of the Veteran's entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) due to service-connected disabilities prior to October 30, 2014. 2. If the benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs