Citation Nr: 1808786	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  12-23 425	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to a compensable disability rating for hearing loss.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).

(The issue of entitlement to a waiver of overpayment of VA compensation benefits in the calculated amount of $132,231.00 is the subject of a separate decision).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K.C. Spragins, Associate Counsel

INTRODUCTION

The Veteran had active service in the United States Marine Corps from November 1966 to December 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The Board notes that the Veteran's disability has been characterized as hearing loss.  Although this characterization lacks specificity, a review of the record, including the September 1970 rating decision that initially granted service connection for the disability, reflects that the Veteran's disability encompasses bilateral hearing loss.  The RO also considered the severity of the Veteran's hearing loss in both ears in its evaluation of the disability in the August 2010 rating decision.

The Board also notes that if the claimant or the record reasonably raises the question of whether the veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is whether TDIU is warranted.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The record shows that in addition to the Veteran's increased rating claim for hearing loss, the August 2010 rating decision denied entitlement to a TDIU.  The Veteran filed a notice of disagreement in May 2011, but the RO later sent the Veteran a July 2012 letter informing him that this issue was no longer on appeal.  The letter stated that the issue was moot due to the fact that the Veteran had a combined disability rating of 100 percent.  However, for reasons discussed in greater detail below, the Board must still consider whether entitlement to a TDIU is appropriate.

As indicated on the title page, the Veteran has another appeal before the Board for entitlement to a waiver of overpayment of VA compensation benefits in the calculated amount of $132,231.00.  As that appeal originates from a different Agency of Original Jurisdiction (AOJ) and involves an issue dependent on different law and facts, it is the subject of a separate decision.  See BVA Directive 8430, paragraph 14.
The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

For the entire appeal period, the Veteran had no worse than Level II hearing loss in the right and left ears.


CONCLUSION OF LAW

The criteria for a compensable disability rating for hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The record shows that the Veteran was last provided with a VA examination related to his bilateral hearing loss disability in January 2016.  The Board finds that this examination is adequate, as it is predicated on a review of the Veteran's medical history as well as on an examination, and it fully addresses the rating criteria that are relevant to rating the Veteran's bilateral hearing loss.  The Board notes the Veteran's contention that his hearing loss is worse than the results from this examination would suggest as the disability impacts his ordinary conditions of daily life due to an inability to hear normal conversations, the television, music, or warning signals; and needing others to repeat themselves often.  See January 2018 Informal Hearing Presentation.  However, the January 2016 VA examination report reflects that these same limitations were reported during that examination.  As the Veteran has not reported any additional functional effects from his bilateral hearing loss, and the record does not contain any other evidence to suggest that there has been a material change in the severity of his disability since he was last examined in January 2016, the Board finds that another VA examination to address the current nature and severity of his bilateral hearing loss is unnecessary in this case.  The Board also notes that the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95.

In addition, the Veteran's Social Security Administration (SSA) records contain his report that he received a hearing test on May 16, 2009 at the Central Alabama Veterans Health Care System (CAVHCS) - West Campus in Montgomery, Alabama.  However, the record reflects that after the Veteran was referred to this facility for an audiology clinic consultation in April 2009, he was unable to be present for the initial appointment scheduled for May 7, 2009.  Following the cancellation of this appointment, the record does not reflect that he had another consultation with the audiology clinic until June 4, 2009.  The results of the audiological evaluation that was conducted during that appointment are associated with the record.  Thus, there do not appear to be any outstanding VA treatment records relevant to his increased rating claim for bilateral hearing loss. 

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to 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 a duty to assist argument).

II.  Law and Analysis

Entitlement to a Compensable Disability Rating for Bilateral Loss

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder.  38 U.S.C. § 1155.  The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary in order for a rating to accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary in order for a rating to accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) ("The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.").  The Board notes that the Veteran's increased rating claim was received on June 26, 2009.  Therefore, the period for consideration on appeal began on June 26, 2008, one year prior to the date of receipt of his increased rating claim.  38 C.F.R. § 3.400(o)(2) (2017).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990).

The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100.

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing through Level XI for profound deafness.

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of decibel I loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to puretone decibel loss.  The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation of the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "V," and the poorer ear had a numeric designation of Level "VII," the percentage evaluation is 30 percent.  38 C.F.R. § 4.85.

Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.85(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral.

On June 4, 2009, the Veteran underwent a hearing evaluation at the VA audiology clinic.  The results of the evaluation showed that the Veteran's puretone thresholds, in decibels, were as follows:





HERTZ



1000
2000
3000
4000
Average
RIGHT
35
45
60
70
52
LEFT
30
35
60
60
46

The speech discrimination score was 100 percent in both the right and left ear.  However, the record did not indicate that the Maryland CNC word list was used.  Thus, the application of Table VI is not appropriate.  Nevertheless, the Board notes that even if these speech discrimination scores were derived from the Maryland CNC word list, they would not entitle the Veteran to a compensable disability rating.  When these speech discrimination scores and the associated puretone threshold averages are applied to Table VI, they yield a numeric designation of I for both the right and left ear.  Table VII reflects that a noncompensable evaluation should be awarded for this combination of numerals.

The record noted the Veteran's report of occasional ear pain or sensitivity in the right ear.  However, the record indicated that this issue was related to recurrent ear infections rather than hearing loss.  The Veteran was administered questions related to a hearing handicap inventory without hearings aids.  With the available choices of 0, 2, or 4; the Veteran answered 4 in regards to questions regarding whether his hearing problem caused him to feel embarrassed when he met new people, whether his hearing problem caused him to feel frustrated when talking to family members, whether he experienced difficulty when listening to the television radio, whether difficulty with his hearing limited or hampered his personal or social life, and whether his hearing problem caused him difficulty when in a restaurant with friends or relatives.  He answered 2 for questions concerning whether he felt handicapped by a hearing problem; whether his hearing problem caused him difficulty when visiting friends, family, or neighbors; and whether his hearing problem caused him to have arguments with family members.  He answered 0 when asked whether his hearing problems caused him to attend religious services less often than he would like.  The record indicated that hearing aids would be ordered for the Veteran.

The Veteran's bilateral hearing loss was evaluated again during a VA examination in August 2009.  The puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
35
55
65
46
LEFT
20
25
55
55
39

Speech audiometry using the Maryland CNC Word List revealed a speech recognition ability of 88 percent in the right ear and of 96 percent in the left ear. Based on these values, Table VI provides that a numeral of II should be assigned for the right ear, and a numeral of I should be assigned for the left ear.  However, this paring of numerals results in a noncompensable evaluation under Table VII.

During the examination, the Veteran reported that he was unable to clearly hear conversations with others or dialogue from audio systems or the television.  In addition, as the Veteran could not clearly hear names, he was unable to remember them.  The Veteran also reported feeling embarrassment from having to ask others to repeat themselves or when he pretended to have heard what was said.  He also described an inability to tolerate loud noises.

In February 2012, the Veteran was seen for a hearing evaluation at VA.  The evaluation reported that the Veteran's puretone thresholds, in decibels, were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
35
40
60
70
51
LEFT
30
40
60
60
47

The speech discrimination score was 96 percent in the right ear and 100 percent in the left ear.  The record did not indicate whether the Maryland CNC test was used.  However, even if the Board were to consider these results, they do not warrant the assignment of a compensable disability rating.  Using Table VI, these findings allow for the assignment of a numeral of I for both the right and left ear.  As previously stated, no more than a noncompensable evaluation is awarded for this combination of values.  See 38 C.F.R. § 4.85, Table VII.

Another VA examination to evaluate the Veteran's bilateral hearing loss was conducted in January 2016.  During the examination, the Veteran's puretone thresholds, in decibels, were documented to be:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
40
60
70
50
LEFT
30
40
60
65
49

Under the Maryland CNC word list, the Veteran had speech discrimination scores of 86 percent bilaterally.  Under Table VI, the right and left ear are each assigned a numeral of II.  However, these numerals only warrant a noncompensable evaluation under Table VII.

The Veteran informed the examiner that as a result of his hearing loss, he was unable to understand normal conversation, television, or music; people needed to repeat themselves; and he had trouble hearing warning signals.

In reviewing the results from the evaluations conducted in June 2009, August 2009, February 2012, and January 2016, the Board has also considered whether Table VIa could be used to obtain a higher numeric designation for either ear.  The Board notes that Table VIa assigns a Roman numeral designation for hearing impairment based only on the puretone threshold average, and is used when the examiner certifies that speech discrimination testing is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86.  38 C.F.R. § 4.85(c).  However, the hearing evaluations from this period did not include certifications stating that use of a speech discrimination test was inappropriate.  In addition, these evaluations did not show that the Veteran's puretone threshold at each of the four specified frequencies was 55 decibels or more.  38 C.F.R. § 4.86(a).  The records also did not reflect that the Veteran had a puretone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz in the right or left ear.  38 C.F.R. § 4.86(b).  Consequently, the record does not indicate that Table VIa should be used.

The regulations also provide that consideration of whether special monthly compensation (SMC) is warranted is required when evaluating any claim for impaired hearing.  See 38 C.F.R. § 3.85(g).  Certain levels of SMC may be awarded for deafness.  However, the SMC criteria require bilateral deafness or some other service-connected disability, such as blindness, which do not apply to the Veteran's case.  38 U.S.C.. § 1114; 38 C.F.R. § 3.350 (2017).  Therefore, SMC is not warranted for the Veteran's bilateral hearing loss.

Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable evaluation for his bilateral hearing loss.  The Board has considered the Veteran's lay assertions regarding the impact of his diminished hearing on his daily life.  However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The Rating Schedule reflects that a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  Consequently, a compensable evaluation is not warranted.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. 

In addition, the Board has considered whether an extraschedular rating is warranted for the Veteran's bilateral hearing loss during the relevant period on appeal.  Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is:  a finding that 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.  38 C.F.R. § 3.321(b)(1) (2017).

The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted").  Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. at 116.  In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate.  Yancy, 27 Vet. App. at 494-95.

With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate.  The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing.  Here, all the Veteran's hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria.  The Veteran has reported symptoms of difficulty hearing and consequent problems with understanding music or conversation, needing others to repeat themselves, and feelings of embarrassment or frustration related to the impairment.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing.  The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds.  The ability of the Veteran to understand people, television dialogue, or musical lyrics; as well as the need to ask others to repeat themselves on a regular basis; is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing.  See Doucette, 28 Vet. App. 366 (holding "that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech").  

Regarding the Veteran's reported feelings of embarrassment and frustration related to hearing loss, the Board notes that it logically follows that difficulty hearing and understanding speech would impact a veteran in a variety of ways, including potential embarrassment and frustration, but the rating schedule is not written to account for every possible consequence associated with each symptom.  Significantly, the Court in Doucette reviewed a similar factual situation, inasmuch as the Board had considered that claimant's report of being embarrassed from having to ask others to repeat themselves, among other reported difficulties, in finding that the resultant effect of the reported symptoms was difficulty hearing.  The Court determined that the claimant had not alleged any symptoms in that case that could be considered exceptional or unusual for a claimant suffering from hearing loss.  See Id., 28 Vet. App. at 372-73.  

The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999.  See 64 Fed. Reg. 25,202 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17,295 (Apr. 12, 1994).

The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties functioning in a social environment due to hearing loss.  Accordingly, the Board finds that the Veteran's reported hearing-related difficulties are factors contemplated in the regulations and schedular rating criteria.  See also Doucette, 28 Vet. App. 366 (holding that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure . . . an inability to hear or understand speech or to hear other sounds in various contexts . . . are contemplated by the schedular rating criteria").  


ORDER

Entitlement to a compensable disability rating for hearing loss is denied.


REMAND

As the Veteran's TDIU claim was raised in the context of his increased rating claim for hearing loss, the appeal period begins on June 26, 2008.  38 C.F.R. § 3.400(o)(2) (2017).  During this period, the Veteran had a combined disability rating of 80 percent prior to May 22, 2009; 90 percent from May 22, 2009 to June 4, 2009; and 100 percent on and after June 5, 2009.  Thus, the Veteran has met the schedular criteria for a TDIU for the entire period on appeal.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Regarding the 100 percent rating in place on and after June 5, 2009, the Board notes that a 100 percent disability rating does not necessarily render the issue of TDIU moot.  In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant SMC under 38 U.S.C. § 1114(s).  Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted.  Bradley, 22 Vet. App. at 293-94.  Under Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating.  See id.

In the Veteran's June 2009 VA Form 21-8940, the Veteran reported that he last worked fulltime, and became too disabled to work, in June 1978.  However, the record reflects Veteran was incarcerated with a felony conviction since at least June 1992 until his release from incarceration in 2009.  See November 1992 Letter; September 2009 Notice of Release and Arrival from the US Department of Justice and Federal Bureau of Prisons; May 2010 VA Note.  Under 38 C.F.R. § 3.341(b), a rating for a TDIU that would first become effective while a Veteran is incarcerated in a Federal, State, or local penal institution for conviction of a felony, shall not be assigned during such period of incarceration.  See 38 U.S.C. § 5313(c).  This phrase has been interpreted to prohibit adjudication of TDIU if that TDIU rating would begin during a period in which a Veteran is incarcerated for conviction of a felony.  See VAOPGCPREC 13-97 (Apr. 7, 1997).  Thus, entitlement to a TDIU may not be granted earlier than the date of the Veteran's release from incarceration.

The term "release from incarceration" includes participation in a work release or halfway house program, parole, and completion of sentence.  38 C.F.R. § 3.665 (b).  The record contains a May 2010 VA note stating that an employee of the US Probation Office confirmed that the Veteran was released to the halfway house, Dismas Charities, on April 22, 2009.  He was then released on parole on September 10, 2009.  See September 2009 Notice of Release and Arrival from the US Department of Justice and Federal Bureau of Prisons.  Thus, the evidence indicates that he was released from incarceration in April 2009.
  
Despite the Veteran's statement that he last worked in 1978, VA treatment records from July 2011 and January 2012 contain reports that the Veteran was running a small business over the internet.  However, the record does not contain any information regarding the income that the Veteran received from this business.  On remand, the AOJ should request the Veteran complete and return an additional Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940.  The AOJ should also request that the Veteran provide information regarding his income since April 2009. 

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and a VA Form 21-4198 (Request for Employment Information in Connection with Claim for Disability Benefits), and ask him to complete and return these forms.  Specifically request that the Veteran provide evidence of his income from April 2009 to the present, including any income from his internet business.

2. After completing the above actions, the claim must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  

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. §§ 5109B, 7112.





____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs