Citation Nr: 1824958 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 10-18 958A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service connected disabilities on an extraschedular basis for the period prior to December 17, 2012. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran had active military service from January 1970 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia which denied entitlement to a TDIU. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2015. A transcript of the hearing is incorporated into the record. The Board remanded the claim to the RO in April 2017 to obtain an opinion on entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b) (2017). An opinion was provided by VA's Director of Compensation Service in January 2018. FINDING OF FACT Prior to December 17, 2012, the Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience. CONCLUSION OF LAW Prior to December 17, 2012, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103(a). In accordance with 38 C.F.R. § 3.159 (b)(1), proper notice must inform the Veteran 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 Veteran is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice was provided to the Veteran in letters sent in December 2011 and June 2012. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159 (c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159 (c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159 (c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, records from the Social Security Administration (SSA), and VA treatment records identified by the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. During the period of appeal prior to December 17, 2012, the Veteran was afforded a VA examination in January 2012. The Veteran also attended VA examinations in June 2008, January 2003, November 2000, and June 1997. The examiners, medical professionals, obtained an accurate history and listened to the Veteran's assertions. The Board finds that the examinations are adequate and contain sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183 (2002). TDIU A total disability evaluation based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, a total rating for compensation 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 a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340 , 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a Veteran is found to be unemployable solely due to his service connected disabilities, then the case is to be referred to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also id. at 363. The Veteran filed his claim for TDIU in September 2011 although he has stated that he has been unemployed since 2002. The Veteran filed a second application for TDIU in February 2015 in which he stated he last worked in 2003 but became unemployable in May 2014. He has been awarded TDIU on a schedular basis effective December 17, 2012. He does not meet the schedular criteria for TDIU prior to December 17, 2012 as prior to that date, he was service connected for PTSD at 50 percent and diabetes mellitus at 20 percent for a combined rating of 60 percent. The Board is precluded from granting extra-schedular ratings in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation Services for this initial consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). 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). Indeed, this is the reason the Board remanded, rather than immediately decided, this ancillary component of the claim in April 2017. See Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that "the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU"); Anderson v. Shinseki, 22 Vet. App. 423, 429 (2009) (holding the Board did not exceed its authority when it reviewed a determination by the Director of C&P denying an extraschedular rating under 38 C.F.R. § 3.321 (b)). The Board has jurisdiction to review the entirety of the Director's decision denying or assigning an extraschedular rating and the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Although the Board is required to obtain the Compensation Service Director's decision before awarding extraschedular TDIU benefits in the first instance, see Bowling, 15 Vet. App. at 10, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C.A. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). Thus, as the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16 (b) has been remanded and referred to the Director, and the Director has issued a decision, the issue is now before the Board and must be addressed on the merits. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record reflects that the Veteran graduated high school and attended two years of college, and was employed after separating from service for a period of approximately 20 years and worked in construction and HVAC maintenance work. The Veteran was laid off in 2002 due to lack of work. In his February 2015 TDIU application he indicated that he also worked in 2003 for a plumbing company. The VA treatment records also reflect that he briefly worked at a juvenile home. See February and March 2002 VA treatment records. VA treatment records also reflect that he had taken courses in heating and air conditioning. See November 2000 VA examination and June 2002 VA treatment record. A June 2003 VA hospital admission record noted the Veteran was admitted from July until September 2003 for PTSD. The discharge form noted the veteran was "not employable." The underlying records from that inpatient treatment include the July 2003 recreation assessment that noted the Veteran has "minimal limitations due to current health condition" The September 2003 discharge summary narrative indicated that the Veteran attended all activities and scheduled classes of the program and showed appropriate understanding of the disease process and was motivated for improvement. He indicated at discharge that the program had been useful. The narrated continued to state that he was not employable but did not prove further explanation for that conclusion. A March 2004 VA outpatient treatment note indicates that he stays busy with volunteer work and recreation hobbies. An August 2011 VA mental health treatment note reflects the Veteran reported that his last job was in 2003 and he stopped working after he became too disabled from his chronic low back pain. A September 2012 record reflects the Veteran indicated he last worked in 2003 and left the job because of back pain. He also reported he was on disability due to limited mobility and physical abilities due to back pain. The veteran was afforded several VA examinations in connection with his claims. During a January 2003 VA examination the Veteran reported that he had been unemployed since March 2002 when he worked as a houseparent in a juvenile rehab center for about three months. He indicated he quit that job because of the stressful nature of it. He reported doing odd jobs since then. He reported a past work history in heating and air conditions and noted he was fired for poor performance and his longest employment was at a textile plant. He also worked in the construction business as a roofer. A June 2008 VA general medical examination reflected the Veteran reported he was unemployed and had been so since 2002. He described a past work history in heating and air conditioning and indicated he was laid off due to a lack of work. He also described working some odd jobs in construction. During a 2008 psychiatric examination the Veteran indicated he stopped working in 2003 due to being laid off and reported he may look for part-time employment but was very limited due to back pain. The examiner concluded that the Veteran's PTSD symptoms did not result in total occupational and social impairment. The examiner also concluded the symptoms did not result in deficiencies in most area, reduced reliability and productivity, occasional decrease in work efficiency or even transient and mild decrease in work efficiency and ability to perform occupational tasks during periods of stress. Rather the examiner concluded the PTSD symptoms were controlled by continuous medication. A January 2012 VA PTSD examination concluded that the PTSD resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significat stress or symptoms controlled by medication. Symptoms at that time included anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment and mild memory loss. The examiner concluded the symptoms of PTSD were in the mild to moderate range and do not prevent employment. As noted above the Board remanded the claim for the Director to consider the issue of unemployability. The Director found that extraschedular entitlement to TDIU was not shown due to PTSD or diabetes prior to 2012 as the evidence showed no total occupational impairment or decrease in work efficiencies and diabetes was noted to be under control. The Director also cited to several non-service-connected disabilities. Accordingly, the Director found no service-connected disabilities individually or collectively was the reason for the Veteran's unemployability. Considering the evidence in light of the rating criteria, the Board finds that while the Veteran's service connected disabilities did have some adverse effect on his physical and mental abilities during this period, those disabilities in and of themselves did not render him unemployable. While the record clearly reflects the Veteran preferred the night shift to avoid interaction with others because of his PTSD, the record does not further reflect the PTSD symptoms resulted in functional impairment that would preclude him from carrying out any job functions outside his capacity. Rather, the January 2008 examiner found the PTSD symptoms were well controlled. The January 2012 examiner concluded that the Veteran's PTSD symptoms were mild to moderate and indicated that, while the symptoms may result in decreased job efficiency, they did not prevent employment. There is also no medical evidence to show that the Veteran's service-connected diabetes mellitus prevents him from obtaining employment. Significantly, even the Veteran in describing his work history to treatment providers and examiners consistently reported he was laid off from lack of work and also attributed his umemployability to his back condition, which is not service connected. As the medical evidence of record shows that the Veteran's current service-connected disabilities do not prevent him from securing and following substantially gainful employment consistent with his educational and occupational experience, entitlement to a TDIU prior to December 17, 2012 is denied. ORDER Entitlement to a TDIU due to service connected disabilities on an extraschedular basis for the period prior to December 17, 2012. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs