Citation Nr: 1827558	
Decision Date: 05/02/18    Archive Date: 05/14/18

DOCKET NO.  10-22 540	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period of January 29, 2007, through March 19, 2014, and in excess of 70 percent thereafter.  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 20, 2014.


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Peters, Counsel


INTRODUCTION

The Veteran had active duty service from August 1966 to July 1970, and from June 1972 to March 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a Board hearing in June 2012.  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).

The case was last before the Board in November 2015, at which time the Board remanded the above issues for additional development.  The case has been returned to the Board at this time for further appellate review.  

The PTSD issue is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The Veteran's service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment throughout the appeal period.  


CONCLUSION OF LAW

The criteria for establishing entitlement to TDIU beginning January 29, 2007, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§3.102, 4.16 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).

There are two regulatory subsections that allow for a TDIU.  The first, called a "schedular TDIU," is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place.  Either the Board or the AOJ can grant a schedular TDIU in the first instance.  The second, called an "extraschedular TDIU," is found at 38 C.F.R. § 4.16(b).  It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance, it must be submitted to VA's Director, Compensation Service in the first instance.  38 C.F.R. § 4.16(b). 

The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only 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.  38 C.F.R. § 4.16(a).  

Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU.  Id.  Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Id.  Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop.  Id.  Consideration must be given in all claims to the nature of the employment and the reason for termination.  Id. 

The TDIU issue is intertwined with the claim for increased initial evaluation for PTSD in this case.  That claim was received January 29, 2007.  Throughout that period, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a).  

After review of the claims file, the Board finds the August 2015 vocational assessment from Dr. C.K.W. to be the most probative evidence of record with respect to whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment.  Dr. C.K.W. reviewed the entire claims file and the functional impairments with respect to the Veteran's service-connected disabilities.  After review of that evidence, Dr. C.K.W. concluded that based on "more than one service-connected disability" that the Veteran's "inability to secure and follow substantially gainful employment dates back to at least 2007."  

Accordingly, the Board finds that TDIU is warranted beginning January 29, 2007-the date of receipt of the Veteran's claim of service connection for PTSD, with which the TDIU claim is intertwined.  See 38 C.F.R. § 4.16.  In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102.


ORDER

Entitlement to TDIU beginning January 29, 2007, is granted.  


REMAND

In the November 2015 remand, the Board directed the AOJ to obtain the Veteran's Louisville Vet Center records; the Board was specifically ordered by the United States Court of Appeals for Veterans Claims (Court) to obtain these records.  

In November 2015, the Veteran's representative submitted a package that purported to be the Louisville Vet Center records that were requested by the Board; however, that packet of documents does not include any treatment records from the Louisville Vet Center.  It does not appear that the AOJ undertook any attempts to obtain the Louisville Vet Center records, nor is there any formal finding of unavailability of those records associated with the claims file.  

Consequently, the Board must remand this case in order to ensure compliance with the Board's previous remand instructions and Court Order.  On remand, the Board also finds that any outstanding VA treatment records should also be obtained.  See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992); Dunn v. West, 11 Vet. App. 462, 466 (1998) (Vet Centers are considered VA facilities for the purposes of the duty to assist in obtaining records, specifically citing Bell v. Derwinski, 2 Vet. App. 611 (1992)).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any and all VA treatment records not already associated with the claims file from the Bay Pines, Louisville, Memphis, and Honolulu VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file.

2.  Obtain any and all Louisville Vet Center records and associate those documents with the claims file.  The AOJ must attempt to obtain these records and if they are unavailable and further attempts to obtain these records would be futile, such must be noted in a formal finding of unavailability that is associated with the claims file.

3.  Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim for increased evaluation for PTSD.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

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).

This claim must be afforded expeditious treatment.  The law requires that all claims 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 (2012).




______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs