Citation Nr: 1806506 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-30 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 28, 2011 and from March 1, 2011. REPRESENTATION Appellant represented by: Timothy S. VanDenBerg, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Army from August 1996 to March 2008. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Regarding the period of January 28, 2011, to March 1, 2011, for the Veteran's claim for TDIU, the record shows that during this time, the Veteran was in receipt of a temporary total (100 percent) rating (under 38 C.F.R. § 4.30) for her right shoulder tendonitis as well as special monthly compensation (SMC) at the (s) rate; this award was based on her right shoulder tendonitis as a single disability rated 100 percent with additional service-connected disabilities combining to have a schedular rating that was independently rated at 60 percent or more. As the Veteran was in receipt of a 100 percent rating for her right shoulder tendonitis, and was also in receipt of SMC, from January 28, 2011, to March 1, 2011, her claim for TDIU during this period of time is moot. Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). The Board has characterized the claim accordingly. Also as an initial matter, in September 2012, the Veteran filed a notice of disagreement (NOD) with the August 2012 rating decision regarding the issues of an increased rating for right shoulder tendonitis, an increased rating for migraine headaches, and entitlement to a TDIU. A statement of the case, issued in January 2013, encompassed these matters. However, in the Veteran's September 2013 VA Form 9, substantive appeal, she limited her appeal to the matter of entitlement to a TDIU. Hence, the matters of increased ratings for migraine headaches and right shoulder tendonitis are no longer before the Board. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302-20.304 (2017). In November 2017, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. For the appeal period prior to January 28, 2011, the Veteran's service-connected disabilities met the schedular criteria for a TDIU rating; however, the competent evidence of record does not show that her service-connected disabilities were of such nature and severity as to have precluded her from securing or maintaining substantially gainful employment for this period of time. 2. For the appeal period from March 1, 2011, the Veteran's service-connected disabilities met the schedular criteria for a TDIU rating, and the competent evidence of record also reasonably establishes that her service-connected disabilities were of such nature and severity as to have precluded her from securing or maintaining substantially gainful employment for this period of time. CONCLUSIONS OF LAW 1. The schedular criteria are met for the period prior to January 28, 2011; however, a TDIU rating is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2017). 2. The schedular criteria for TDIU are met for the period from March 1, 2011, and a TDIU rating for such period of time is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. § 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor her attorney, has alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All pertinent records have been obtained, to the extent available. Finally, neither the Veteran nor her attorney has raised any other issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. In order 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 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "Marginal employment shall not be considered substantially gainful employment." The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). It is also the policy of the VA, however, 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(b) (2016). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b) (2016); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran's service-connected disabilities are seizure disorder, rated at 10 percent from March 28, 2008 and 60 percent from April 15, 2010; chronic bronchitis, rated at 0 percent from October 8, 2010 and 60 percent from April 7, 2014; migraine headaches, rated at 0 percent from March 28, 2008, 30 percent from October 5, 2009, and 50 percent from April 7, 2014; lower back strain, rated at 10 percent from March 28, 2008; right shoulder tendonitis, rated at 10 percent from March 28, 2008, 100 percent from January 28, 2011, and 10 percent from March 1, 2011; tinnitus, rated at 10 percent from August 20, 2013; anemia, rated at 0 percent from March 28, 2008; and right carpal tunnel syndrome, rated at 0 percent from March 28, 2008. The Veteran has also been awarded special monthly compensation under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) on account of right shoulder tendonitis rated at 100 percent and additional service-connected disabilities of lower back strain, migraine headaches, seizure disorder, independently ratable at 60 percent or more from January 28, 2011 to March 1, 2011. The Veteran has also been awarded special monthly compensation under 38 U.S.C. § 1114, subsection (p) and 38 C.F.R. § 3.350(f)(3) at the rate intermediate between subsection (l) and subsection (m) on account of seizure disorder with additional disabilities, right shoulder tendonitis, chronic bronchitis, tinnitus (also claimed as ear pain), migraine headaches, lower back strain independently ratable at 50 percent or more from December 16, 2015. As previously explained in the Introduction, the period from January 28, 2011, to March 1, 2011, is not for consideration herein. For the appeal period from March 1, 2011, the schedular rating requirements for a TDIU, under 38 U.S.C. § 4.16(a), are met. Also, for the appeal period prior to January 28, 2011, the schedular rating requirements for TDIU, under 38 U.S.C. § 4.16(a), are met. However, finding that a Veteran meets the schedular requirements for TDIU is not where the inquiry ends. Instead, it must also be shown that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Following a review of the evidence, the Board finds that it has been shown that the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation for the appeal period from March 1, 2011 due to her service-connected disabilities. However, for the appeal period prior to January 28, 2011, it has not been shown that the Veteran's service-connected disabilities render her unable to secure or follow substantially gainful occupation. The Veteran submitted a VA Form 21-8940 requesting compensation based on unemployability (TDIU) in October 2010 and December 2011. The Veteran asserted that her seizures, migraines, and shoulder prevented her from securing or following substantially gainful employment. The Veteran worked full-time as a human resources assistant from September 2008 to January 2011, when she became too disabled to work. She reported that she was terminated because of a medical appointment and surgery she was having done on her shoulder. The Veteran was hired again by another employer in January 2012, but due to her disabilities, she had to resign in August 2012. See September 2013 Correspondence. Other evidence of record shows that the Veteran's service-connected disabilities impact her ability to function at work. For example, in October 2010, VA received a letter from the Veteran's current supervisor, Mrs. C.R., who stated that she had witnessed the Veteran on many occasions being affected by her illness. She stated that the Veteran called out of work on many occasions due migraine headaches and seizures. The Veteran was also hospitalized for a week and out of work for approximately four months. When she returned to work, the Veteran was still ill and unable to function to full capacity. In a December 2011 VA examination report, it was noted that the Veteran had a seizure in 2010 and went through a period of rehabilitation in which she was unable to work for four months. In September 2012, a VA examiner concluded that the Veteran's right shoulder condition would limit her from doing physical or manual labor type jobs. In December 2014, a VA examiner concluded that the Veteran's asthma and chronic bronchitis impacted her ability to work in that her asthma would flare-up if she was exposed to certain smells and dust. In a September 2014 VA examination, it was noted that the symptoms of the Veteran's migraine headaches included pulsating or throbbing head pain, nausea, sensitivity to light, sensitivity to sound, and changes in vision. The VA examiner further reported that the Veteran had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic adaptability. The VA examiner concluded that the Veteran's migraine headaches negatively impacted her ability to work. A July 2016 VA examination for seizure disorders showed that the Veteran had been diagnosed with tonic-clonic seizures or grand mal since 2004. The VA examiner reported that the Veteran was totally disabled due to the combination of epilepsy and familial spastic paraparesis. Based on the foregoing, the Board concludes that for the period from March 1, 2011, the evidence shows that the Veteran has not been able to work due to her service-connected disabilities. Therefore, entitlement to a TDIU from March 1, 2011 is warranted. However, due to the fact that the Veteran was employed during the appeal period prior to January 28, 2011, the Board finds that it has not been shown that the Veteran was unable to obtain or maintain gainful employment during that period. Therefore, entitlement to a TDIU is not warranted for the appeal period prior to January 28, 2011. (CONTINUED ON NEXT PAGE) ORDER A TDIU rating is denied for the period prior to January 28, 2011. A TDIU rating is granted for the period from March 1, 2011, subject to the regulations governing payment of monetary awards. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs