Citation Nr: 1807135	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  08-30 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Tracie N. Wesner, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 2005 to May 2007.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Denver, Colorado.  This matter was remanded by the Board in March 2015.  In March 2011, the Veteran testified before a Veterans Law Judge who is no longer with the Board.  In March 2014, the Veteran declined a new hearing.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation.


CONCLUSION OF LAW

The criteria for a grant of TDIU have been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Order to Vacate

As a preliminary matter, the Board acknowledges that it may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017).

In a March 2017 decision, the Board mistakenly relied on 38 C.F.R. § 4.16(a) in granting the Veteran a TDIU when he did not meet the schedular requirements for a TDIU under this section.  Thus, the March 2017 decision must be vacated and the Veteran's claims considered de novo.  A new decision on this issue, based on all of the evidence of record, is made as if the Board's March 2017 decision on the matter had never been rendered. 

II. Entitlement to a TDIU

The Veteran asserts that his service-connected low back and cervical spine disabilities render him unable to obtain and retain gainful employment and thus supports his entitlement to a TDIU.  In support, he states that due to these disabilities he has severe pain and is unable to work because he cannot bend, lift or twist, thus rendering him unable to secure or follow a substantially gainful occupation.

A total disability rating may be assigned, where 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 the result of service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Unlike the regular disability rating schedule that is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994); Moore v. Derwinski, 1 Vet. App. 356 (1991).

To qualify for a total rating for compensation purposes under 4.16(a), the evidence must show that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent.  38 C.F.R. § 4.16(a).  Disabilities that are not service connected cannot serve as a basis for a total disability rating.  38 C.F.R. §§ 3.341, 4.19.  

In this case service connection is in effect for thoracolumbar strain, with a 40 percent rating; cervical strain, with a 20 percent rating, and; tinnitus, with a 10 percent rating.  His combined disability rating has been no more than 60 percent during the appeal period.  As such, the Veteran does not meet the schedular criteria set forth in 38 C.F.R. § 4.16(a). 

Nevertheless, 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(b).  Thus, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16 (a), the case should be submitted for extraschedular consideration of entitlement to a TDIU.  38 C.F.R. § 4.16 (b). 

Historically, the Court of Appeals for Veteran's Claims (the Court) has held that the Board may not grant an award of a TDIU under section 4.16(b) in the first instance.  See Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  The Court relied on its holding in Floyd v. Brown, which found that the language of 38 C.F.R. § 3.321(b) did not authorize the Board to assign an extraschedular rating in the first instance.  Floyd v. Brown, 9 Vet. App. 88, 94-97 (1996) (holding that the regulations required that the field station submit the case to the Under Secretary of Benefits or the Director, Compensation Service, who were authorized to approve an extraschedular evaluation).  

However, the Board notes that effective January 8, 2018, 38 C.F.R. § 3.321(b) no longer requires a field station to submit a case to the Director, Compensation Service for the assignment of an extraschedular rating in the first instance.  See 82 Fed. Reg. 57830 (December 8, 2017).  The amended language of this regulation provides that the Director of Compensation Service or his or her delegate is authorized to approve an extraschedular evaluation on the basis of the criteria set forth in paragraph (b).  See id (emphasis added).  

The Board finds that the Veteran's service-connected disabilities result in marked interference with employment and render him unable to obtain or maintain substantially gainful employment.  A VA examination was afforded the Veteran in April 2016.  The examiner, a VA physician, noted that the Veteran's disabilities of the cervical and thoracolumbar spine resulted in pain and limitation of motion of the spine; however, the Veteran did not require braces or other assistance devices for mobility, which was unhindered, and was capable of performing all basic activities of daily living without assistance.  Regarding occupational impact, the examiner opined that the Veteran would be unable to perform any occupation which required heavy lifting, but was not prohibited from more sedentary jobs.  The examiner suggested that the Veteran would need to be able to take breaks every 30 minutes to avoid prolonged standing or sitting.  

In a March 2016 report of employment history, the Veteran reported that he last worked from August 2011 to August 2014 in a restaurant.  His duties mainly included custodial work.  He reportedly quit due to the physical demands of the job.  Prior to that job, he owned a moving company, but reportedly lost that business.  He has reported his education to consist of a high school diploma, with no college courses reported.  

After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran's service-connected disabilities cause marked interference with employment and prevent him from securing and following substantially gainful employment.  In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).   

Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran's service-connected disabilities is of such nature and severity as to preclude substantially gainful employment.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail).  The Board finds significant that the Veteran's employment history includes significant physical labor.  Thus, given the evidence regarding the severity of the Veteran's service-connected disabilities, and opinions and evidence indicating the Veteran's functional limitations due to his disabilities, and in light of his individual work experience, training and education, the Board finds that the evidence shows he is entitled to an award of a TDIU rating.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  Thus, the appeal is granted.


ORDER

Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted.  





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs