Citation Nr: 1807326 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-30 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). 2. Entitlement to TDIU prior to January 6, 2015 on an extraschedular basis. REPRESENTATION Veteran represented by: Robert Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty from November 1964 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a Board hearing in May 2013 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the record. In an April 2016 decision, the Board denied entitlement to a compensable rating for post-traumatic stress disorder (PTSD) for the period prior to August 26, 2011; granted a 50 percent rating for PTSD for the period from August 26, 2011 to August 20, 2012; granted a 70 percent rating for PTSD for the period from January 6, 2015 to February 11, 2015; and denied entitlement to a rating in excess of 70 percent from January 6, 2015. The Veteran appealed the April 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2017 memorandum decision the Court upheld the evaluations assigned to the Veteran's PTSD. However, the Court also determined that the issue of entitlement to TDIU had been raised by the record as part of the Veteran's claim for an increased rating for PTSD, and the matter was remanded to the Board. The claim for TDIU is now before the Board for initial consideration. 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) (2014). The issue of entitlement to TDIU prior to January 6, 2015 on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The combined ratings for the Veteran's service connected disabilities have been zero percent from July 21, 2008; 50 percent from August 16, 2011; and 70 percent from January 6, 2015. The schedular criteria for an award of TDIU have been met from January 6, 2015. 2. Uncontroverted medical opinion states that the Veteran's service connected disabilities preclude him from obtaining or maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for TDIU from January 6, 2015 have been met. 38 C.F.R. § 4.16(a) (2016). 2. The criteria for TDIU on a schedular basis prior to January 6, 2015 have not been met. 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a) (2014); C.F.R. § 3.159(b)(1) (2017). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Board will grant the issue on appeal from January 6, 2015. Any failure in the duty to notify or assist in regards to this period was harmless error. With respect to the matter of TDIU prior to January 6, 2015 on a scheduler basis, it arose from disagreement with the initial evaluations following the grant of service connection for PTSD. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to notify has been met. As for the duty to assist, the Veteran, through his attorney, has submitted additional evidence accompanied by a waiver. There is no indication of any outstanding evidence that would have a bearing on the matter, and the Board will proceed with adjudication of the Veteran's appeal. TDIU The Veteran contends that his service connected PTSD and migraine headaches combine to render him incapable of obtaining and maintaining more than marginal employment. TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall 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. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. The Veteran is service connected for migraine headaches, which have been rated as zero percent disabling from July 21, 2008. He is also service connected for PTSD. This disability has been evaluated as zero percent disabling from September 9, 2010; 50 percent disabling from August 26, 2011; and 70 percent disabling from January 6, 2015. The Veteran's combined evaluations have been zero percent from July 21, 2008; 50 percent from August 16, 2011; and 70 percent from January 6, 2015. From January 6, 2015 As of January 6, 2015, the Veteran has met the schedular criteria for consideration of TDIU. The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is "whether the [V]eteran's service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363. The Veteran, through his attorney, has submitted a November 2017 employability evaluation by an expert in rehabilitation counseling. After an interview with the Veteran and a review of his entire claims file that is described in a lengthy report, this expert concluded that the Veteran's migraine headaches and PTSD each preclude him from the competitive labor market. Although the Veteran is employed in answering a few phone calls a day from home, the examiner notes that the wages from this work amount to only marginal employment, and this position does not represent substantially gainful employment. She opined that the symptoms of the Veteran's PTSD would impair his ability to get along with co-workers, supervisors, or the general public without conflict. 12/21/2017 Medical Treatment Record - Non-Government Facility, pp. 1, 10. The Board notes that the Veteran's VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability shows that he works only a few hours a month on a website for a business owned by a relative, for which he receives no more than $100 a month. 12/21/2017 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability, pp. 1, 3. The Board has reviewed the entirety of the medical evidence for the period from January 6, 2015. It contains no opinion that states or suggests that the Veteran remains capable of gainful employment. As the November 2017 opinion is the only opinion of record, and as that opinion sufficiently considered the relevant evidence of record, the Board finds it highly probative. Consequently, the Board finds that entitlement to TDIU from January 6, 2015, the day the Veteran first met the schedular criteria, is warranted. Prior to January 6, 2015 The Veteran did not have a combined evaluation of 70 percent for any portion of the period prior to January 6, 2015. The record shows that entitlement to service connection for migraine headaches was established as secondary to PTSD. However, even if the migraine headaches and PTSD are considered to be one disability, the schedular requirements are still not met, in that the combined rating for the period prior to January 6, 2015 never exceeded 50 percent. Therefore, the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a) have not been met, and entitlement to TDIU on a schedular basis may not be awarded for this period. Entitlement to TDIU on an extraschedular basis will be addressed below. ORDER Entitlement to a total rating based on individual unemployability due to service connected disabilities from January 6, 2015 is granted. Entitlement to a total rating based on individual unemployability due to service connected disabilities prior to January 6, 2015 on a schedular basis is denied. REMAND The November 2017 expert in rehabilitation counseling has opined that the Veteran's migraine headaches rendered him unemployable from 2008, and his PTSD rendered him unemployable from 2010. Although the Veteran did not meet the schedular criteria for consideration of TDIU prior to January 6, 2015, TDIU may still be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16 (b) (2016). Specifically, the regulations provide that, in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In such a case, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an award on an extraschedular basis. 38 C.F.R. § 3.321 (b)(1) (2016). The Board is not authorized to award extraschedular benefits in the first instance. The Board observes that the Veteran's combined rating evaluation for the period prior to August 16, 2011 was zero percent, which would suggest that his disabilities did not result in any economic impact. After all, these percentages represent as far as can be determined the average impairment in earning capacity resulting from his disabilities. See 38 C.F.R. § 4.1 (2017). In contrast, the November 2016 expert in rehabilitation appears to opine that the Veteran was unemployable during this period. The November 2017 expert in rehabilitation counseling further notes that the medical experts who have previously examined the Veteran have no expertise in translating how the Veteran's physical or emotional limitations will restrict or prevent someone from working. 12/21/2017 Medical Treatment Record - Non-Government Facility, p. 10. Therefore, the Board finds that a VA expert in vocational rehabilitation should be afforded an opportunity to review records pertaining to the Veteran's service connected disabilities and comment regarding the occupational limitations that result from each disability for the period in which he fails to meet the schedular requirements. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The claims file should be forwarded to a VA Vocational Rehabilitation Counselor or an equivalent expert. After a review of the record for the period from July 21, 2008 to January 6, 2015, the examiner should list the occupational impairments and limitations that resulted from the Veteran's migraine headaches and from his PTSD. A list of these impairments and limitations should be compiled and placed in the claims file. 2. After completion of the above, forward the Veteran's claims file to the Director, Compensation Service to consider whether the Veteran is entitled to TDIU on an extraschedular basis. 3. Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs