Citation Nr: 1807091 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 07-17 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date earlier than May 20, 1999, for the grant of a total disability rating due to individual unemployability (TDIU) due to the Veteran's service-connected disabilities, to include on the basis of clear and unmistakable error (CUE). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to April 1984. These matters came to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in January 2015; the transcript is of record. In a March 2015 decision, the Board denied entitlement to an effective date earlier than April 28, 1988, for a grant of service-connected compensation; denied entitlement to an effective date earlier than May 20, 1999 for the grant of a TDIU; and, granted an earlier effective date of April 28, 1988 for a grant of service connection for bilateral otitis externa, post myringotomy, right ear, and otitis media, right ear. The Board's grant was implemented in a March 2015 rating decision. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims. Pursuant to a June 2016 Memorandum Decision, the decision of the Board was vacated and remanded for action consistent with the Memorandum Decision. Thereafter, in a December 2016 decision, the Board granted entitlement to an effective date of April 8, 1984 for the grant of service connection for facial lacerations; status post head injury with cerebral concussions and residuals of bilateral VI nerve palsy with intermittent diplopia; bilateral otitis externa, post myringotomy, right ear and otitis media, right ear; tinnitus; mandibular and maxillary fractures; and, conductive hearing loss, right ear. In light of this grant, the Board remanded the Veteran's claim of entitlement to a TDIU prior to May 20, 1999, for additional development and readjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its December 2016 remand, the Board requested that the Veteran undergo a vocational assessment to evaluate the impact of his service-connected disabilities on his ability to function in an occupational setting prior to May 20, 1999. The Board also instructed the AOJ to refer the Veteran's claim for a TDIU to the Director, Compensation Service, for extraschedular consideration, if it was determined that the Veteran was unemployable for the period prior to May 20, 1999. Subsequent to the Board's December 2016 remand, the RO, in an August 2017 memorandum, noted that the requests for a social and industrial survey were unsuccessful and determined that further requests would be fruitless, based on past experience. The RO also determined that referral for extraschedular consideration was not warranted in this case, as the evidence did not show a picture of exceptional or unusual disability resulting in the Veteran being unemployed due to service-connected disabilities prior to May 20, 1999. See 08/02/2017, SSOC. The Board agrees that any further requests would be fruitless and only serve to delay adjudication of the case. Nonetheless, the Board finds that VA should obtain a VA opinion that retrospectively describes the Veteran's functional limitations due to his service-connected disabilities prior to May 20, 1999, as such an opinion would assist the Board in adjudicating the claim. Prior to May 20, 1999, service connection was in effect for the following: facial lacerations (left ear, left face, and left frontal scalp); status post head injury with cerebral concussions, and residuals of bilateral VI nerve palsy, with intermittent diplopia; bilateral otitis externa, post myringotomy, right ear, and otitis media, right ear; tinnitus; mandibular and maxillary fractures; cervical spine strain; and conductive hearing loss. Prior to May 20, 1999, the Veteran's combined disability rating was no higher than 40 percent. As such, he does not meet the schedular percentage threshold for a TDIU under § 4.16(a). Nevertheless, it is VA's established policy 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. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In a TDIU application from September 2000, the Veteran indicated that in 1992 he became too disabled to work full-time. From 1992 to 2000, he was self-employed doing appliance repair work, on a part-time basis. He reported working 10 hours per week and highest gross earnings per month of $775 in 1997. He asserted that his mental disorder prevents him from securing or following any substantially gainful occupation. As already noted, prior to May 20, 1999, the Veteran was service-connected for status post head injury with cerebral concussions, and residuals of bilateral VI nerve palsy, with intermittent diplopia. (Service connection for organic brain disease, with organic mood disorder, including symptoms of anxiety, depression, and fatigue, has been in effect from May 20, 1999, forward.) The evidence suggests that, prior to May 20, 1999, the Veteran's employment was marginal. The Board further notes that a TDIU is in effect since May 20, 1999. As such, there is some indication that, prior to May 20, 1999, the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities at the time. Thus, the case must be referred to the Director, Compensation Service, for consideration of whether a TDIU was warranted on an extraschedular basis prior to May 20, 1999. See 38 C.F.R. § 4.16 (b). Accordingly, the case is REMANDED for the following action: 1. Forward the entire claims file to a VA examiner with the appropriate medical expertise, to provide a retrospective medical opinion concerning the Veteran's functional limitations prior to May 20, 1999. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. The examiner should retrospectively describe the Veteran's expected functional impairment caused by the service-connected disabilities in effect prior to May 20, 1999. These disabilities are: facial lacerations (left ear, left face, and left frontal scalp); status post head injury with cerebral concussions, and residuals of bilateral VI nerve palsy, with intermittent diplopia; bilateral otitis externa, post myringotomy, right ear, and otitis media, right ear; tinnitus; mandibular and maxillary fractures; cervical spine strain; and conductive hearing loss. In particular, the examiner should elaborate on how symptoms related to these disabilities likely affected the Veteran's capacity to do both physical and sedentary work prior to May 20, 1999. The Board is particularly interested in ascertaining the functional impairment caused by the Veteran's status post head injury with cerebral concussions, and residuals of bilateral VI nerve palsy, with intermittent diplopia. The examiner's analysis, however, should not be limited to that disability. Finally, the examiner should be cognizant that, at present, a TDIU is in effect from May 20, 1999, forward. 2. Thereafter, the Veteran's claim should be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU due to his service-connected lung disability, i.e., an opinion as to whether his service-connected lung disability preclude him from securing and following gainful employment. 3. Readjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2016). ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).