Citation Nr: 18108808 Decision Date: 06/07/18 Archive Date: 06/06/18 DOCKET NO. 00-04 748 DATE: June 7, 2018 ORDER A TDIU from May 1, 1999, to July 11, 2012, is granted, subject to the laws and regulations governing the award of monetary benefits. A TDIU from July 11, 2012, is denied. FINDINGS OF FACT 1. From May 1, 1999, to July 11, 2012, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. In addition to the 100 percent disability rating for an acquired psychiatric disability, the Veteran is service connected for irritable bowel syndrome (IBS), which is rated at 30 percent disabling from June 3, 1998. 3. From July 11, 2012, a TDIU cannot be granted separately based on a single service-connected disability other than an acquired psychiatric disability as the Veteran’s IBS does not meet the schedular requirements for a TDIU, nor does the evidence show that he is unable to obtain or maintain substantially gainful employment as a result of his IBS. CONCLUSIONS OF LAW 1. The criteria for a TDIU are met from May 1, 1999, to July 11, 2012. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From July 11, 2012, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from February 1989 to December 1991, to include service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2014, the Board denied entitlement to a TDIU, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In December 2014, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR). In April 2015, the Board again denied entitlement to a TDIU. The Veteran appealed to the Court. In September 2015, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a JMR. In March 2017, the Board remanded the Veteran’s claim for further development in compliance with the JMR. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings 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, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell, 9 Vet. App. 237, 238-9; Floyd, 9 Vet. App. 88, 96. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer, 22 Vet. App. 242; see also Shipwash, 8 Vet. App. 218, 227. TDIU from May 1, 1999, to July 11, 2012 Prior to July 11, 2012, the Veteran’s service-connected disabilities were an acquired psychiatric disability rated at 70 percent and IBS rated at 30 percent. The Veteran’s combined rating was 80 percent, with one disability rated at 40 percent or more. As such, the Veteran meets the schedular rating criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. In May 1999, the Veteran’s treatment records show that his wife was the only one working. At an April 2000 RO hearing, the Veteran testified that he was not working. In a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received in April 2004, the Veteran reported that he has not had a fulltime job in the past five years, or approximately April 1999. He indicated that he left his last employment due to his service-connected disabilities. He reported that he had a high school education and was HVAC certified. Accordingly, the competent evidence of records establishes that the Veteran last worked fulltime in April 1999. In February 2005, the Veteran was afforded a VA examination for his acquired psychiatric disability. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner assessed the Veteran with a global assessment of functioning score (GAF) of 40 to 45, indicating a major or serious impairment in occupational functioning resulting in an inability to work. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.130. In June 2006, the Veteran’s psychiatrist reported that it was highly unlikely the Veteran would ever be able to work due, in part, to his psychological symptoms. In September 2008, the Veteran was afforded a VA examination for his acquired psychiatric disability. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner assessed the Veteran with a GAF of 41 and reported that the Veteran had a substantially severe level of impairment. In a March 2009 addendum, the examiner reported that the Veteran’s acquired psychiatric disability resulted in moderate difficulty in employment. In January 2015 and August 2016, vocational expert William T. Cody reviewed the Veteran’s claim file and opined that the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation. The Board acknowledges that some VA examiners have suggested that the Veteran is capable of a limited range of work. However, multiple VA examiners and the vocational expert opined that the Veteran would be unable to sustain substantial gainful employment due to his service-connected disabilities. As such, the Board concludes that the evidence for and against TDIU from January 1, 2014 is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran’s behalf, and hold that a TDIU from May 1, 1999, the date the competent evidence establishes the Veteran was unemployed, to July 11, 2012, is warranted. As such, the Veteran’s claim is granted to this extent. TDIU from July 11, 2012 Beginning July 11, 2012, the Veteran in this case is service-connected for an acquired psychiatric disability rated at 100 percent disabling and IBS rated at 30 percent disabling. VA’s duty to maximize benefits requires it to assess all of a claimant’s service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, the Court held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280 ). It is possible that a veteran with a 100 percent schedular disability rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating). A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a “total” (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC. See Buie, 24 Vet. App. at 249-50. In this case, beginning July 11, 2012, in addition to the 100 percent schedular disability rating for an acquired psychiatric disability, the Veteran is service connected for IBS, evaluated at 30 percent disabling. Notwithstanding the schedular 100 percent rating assigned for an acquired psychiatric disability, the service-connected IBS alone does not meet the criteria for the assignment of a TDIU. As the Veteran does not meet the schedular criteria for a TDIU, the Board must consider whether the Veteran has nevertheless demonstrated that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected IBS considered alone. See 38 C.F.R. § 4.16(b). After a review of the competent evidence of record, the Board finds that referral for extraschedular consideration of a TDIU rating is not warranted based on the Veteran’s service-connected IBS from July 11, 2012. A review of the competent evidence of record, which includes the Veteran’s VA treatment records and his lay statements, when taken in total, does not suggest unemployability as a result of his service-connected IBS. As discussed above, the vocational expert opined that the Veteran was precluded from obtaining and maintaining substantial gainful employment from his acquired psychiatric disability and his IBS. As such, the opinions of the vocational expert do not show that the Veteran’s IBS alone precluded substantial gainful employment. In June 2016, a VA examiner reviewed the Veteran’s claims file. The examiner opined that the Veteran’s IBS resulted in no functional impairment. While it is ultimately a rating consideration as to whether the Veteran is able to obtain or maintain substantially gainful employment, the medical evidence of record in this case does not suggest that the Veteran has been so functionally limited by his service-connected IBS as to be unable to obtain or maintain substantially gainful employment. VA medical opinions that weigh against the Veteran’s claim for a TDIU are persuasive and found to have great probative value, as they were provided after the examiner had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. Although the VA examiner acknowledged that the Veteran’s service-connected IBS might limit the types of work that could be performed, the examiner also opined that his service-connected IBS would not preclude work entirely. The Veteran has not submitted any medical opinion regarding any inability to sustain substantial gainful employment due to his service-connected IBS. The Board acknowledges that the Veteran is competent to report symptoms of his service-connected IBS. See Barr, 21 Vet. App. 303; Jandreau, 492 F.3d 1372, 1377; Layno, 6 Vet. App. 465. He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran’s service-connected IBS has been provided by the VA medical professional, who provided medical findings that directly address the criteria under which a TDIU is assigned. The Board finds the opinion of the June 2016 VA examiner to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran’s subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected IBS alone is sufficient to produce unemployability. Although his IBS produces some impairment, the evidence does not reflect gainful employment is precluded solely due to the Veteran’s service-connected IBS. In addition, the Veteran has not identified or submitted any competent evidence demonstrating that his service-connected IBS precludes him from securing and maintaining substantially gainful employment and entitle him to a TDIU on an extraschedular basis from July 11, 2012. The Board does not believe that the Veteran’s service-connected IBS would prevent him from obtaining or maintaining substantially gainful employment that allowed him either frequent use of a bathroom or use of protective undergarments. A TDIU is only warranted when service-connected disabilities prevent employment. Here, it simply is not shown that the Veteran’s IBS prevents the Veteran from obtaining or maintaining substantially gainful employment. The Veteran’s representative asserts that the Veteran is unable to perform his past work due to his IBS. While the Veteran may be unable to perform his previous part-time work in newspaper delivery, a TDIU is warranted only if the Veteran’s service-connected IBS prevented him from obtaining or maintaining any substantially gainful employment, which has not been shown. Accordingly, a TDIU on an extraschedular basis from July 11, 2012, is not warranted. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel