Citation Nr: 1806959 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-32 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extra-schedular basis prior to October 10, 2013. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The Veteran had active military service from January 1968 to September 1969. This appeal to the Board of Veterans' Appeals (Board) originated from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which initially considered and denied the Veteran's claim of entitlement to a TDIU. In October 2012 the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, also commonly referred to as a Travel Board hearing. In a subsequent December 2014 decision, the Board assumed jurisdiction over this derivative TDIU claim based on the Veteran's statements made on his Substantive Appeal to the Board (VA Form 9) and hearing testimony, in which he had indicated that he was claiming entitlement to a TDIU on account of his posttraumatic stress disorder (PTSD). See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also readjudicated his claim for an initial rating higher than 50 percent for his PTSD and granted a greater 100 percent rating for this service-connected disability retroactively effective from October 10, 2013. The Board consequently dismissed the derivative claim for a TDIU since October 10, 2013 (although not prior), as moot, and remanded this remaining portion of the claim (i.e., a TDIU prior to October 10, 2013) for additional development. Unfortunately, still further development is required, so although partially deciding some aspects, the Board is again remanding the remaining aspects of this claim to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to October 10, 2013, the Veteran did not meet the schedular criteria for a TDIU because he had one service-connected disability rated as 50-percent disabling rather than as at least 60-percent disabling. CONCLUSION OF LAW Prior to October 10, 2013 the schedular criteria were not met for a TDIU. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Commensurate with passage of the Veterans Claims Assistance Act (VCAA), VA has enhanced obligations to notify and assist Veterans with claims for benefits upon receipt of a complete or substantially complete application. VA's duty to notify was satisfied by way of a letter in July 2013. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Furthermore, during the October 2012 Travel Board hearing, the undersigned VLJ duly explained the issue on appeal and elicited relevant testimony from the Veteran. Moreover, in the questioning and responses, the Veteran and his representative evidenced their actual knowledge of the type of evidence and information needed to substantiate this claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). For this reason the Board finds that the duties mandated by 38 C.F.R. § 3.103(c)(2) were met. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In addition, to satisfy VA's additional obligation to assist him with this claim, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been obtained. The Board remanded the claim in December 2014 for further development, including a "retrospective" medical opinion addressing the level of functional impairment caused by the Veteran's service-connected PTSD prior to October 3, 2013 (which was received by VA in May 2015). There was compliance, certainly substantial compliance, with that remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (Where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not identified any records that remain outstanding that are relevant and obtainable. II. Schedular TDIU 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; 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). Prior to October 10, 2013, the Veteran was in receipt of service connection for PTSD with an assigned 50 percent evaluation, effective October 14, 2010. As this was his only service-connected disability, he did not meet the § 4.16(a) schedular criteria for a TDIU because his lone service-connected disability needed to have been rated higher - namely, to reiterate, as at least 60-percent disabling. Accordingly, as a matter of law, prior to October 10, 2013, he did not meet the schedular criteria for a TDIU and, therefore, this portion of the claim must be denied. See 38 C.F.R. § 4.16(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Notwithstanding this determination, the Board will additionally address the issue of entitlement to a TDIU on an extra-schedular basis in the REMAND portion of this decision below. ORDER The claim of entitlement to a TDIU on a schedular basis prior to October 10, 2013 is denied. REMAND The Veteran stated on his official TDIU application (VA Form 21-8940) that he had completed just two years of high school. He reported working as a water truck driver. He also reported becoming too disabled to work in August 2010 due to his service-connected PTSD. The evidence of record reflects that the Veteran might have been unemployable due to his service-connected PTSD at some point during the period on appeal, meaning even prior to October 10, 2013. Specifically, during his December 2010 VA examination, he reported a "satisfying" seasonal job as a water truck driver. The examiner indicated that the Veteran's job was perfect for him because he worked alone but also conceded he would have difficulty in any job requiring him to work closely with others. During the October 2012 Travel Board hearing before the undersigned, the Veteran testified that during the last few years of working as a water truck driver his PTSD symptoms worsened and he was laid off. In the prior December 2014 Board remand directives, the RO or Appeals Management Center (AMC) was requested to obtain a "retrospective" medical opinion addressing the level of functional impairment caused by the Veteran's service-connected PTSD prior to October 2013. The VA examiner charged with making this determination observed that the Veteran had reported having a "satisfying job" during his December 2010 VA examination and his prognosis was noted to be "fair-to-good," indicating a promising work history. However, it does not appear the September 2016 VA examiner also considered the December 2010 examiner's concession that the Veteran would have difficulty in any job requiring him to work closely with others. This then raises the question of, even assuming the Veteran was able to work during this earlier timeframe at issue, whether it was tantamount to marginal employment versus substantially gainful employment. 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 (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. 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. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. At no point at any time still at issue has the Veteran met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), which means that a TDIU, if warranted, would have to be awarded instead on an extra-schedular basis under the alternative provisions of § 4.16(b). However, as already explained, the Board cannot do this on its own initiative, that is, in the first instance, having instead to refer the matter to the appropriate authority for this special consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, this remaining portion of the claim is REMANDED for the following action: 1. Refer the Veteran's claim of entitlement to a TDIU prior to October 10, 2013, to the Director of the Compensation Service or designee for consideration of whether this benefit is warranted on an extra-schedular basis under the special provisions of § 4.16(b). 2. If this claim for a TDIU prior to October 10, 2013 continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response 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 remaining 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 (2012). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs