My comments are in Red. Cite the second comment when appealing your TDIU so you dont get on the remand hamster wheel like I did.
Analysis
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2011). A finding of total disability is appropriate "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(a)(1), 4.15 (2011).
A TDIU rating may be assigned where the schedular rating is less than total, (Notice that it did not say that a total rating precludes IU) 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 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2011). In determining whether the Veteran is entitled to a TDIU rating, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19 (2011).
In Beaty v. Brown, 6 Vet. App. 532, 537 (1994), the Court indicated that the Board cannot deny the Veteran's claim for total rating based on individual unemployability without producing evidence, as distinguished by mere conjecture, that the Veteran can perform work.
In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective versus objective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCREC 75-91 (Dec. 27, 1991).... ....
The Veteran filed his claim of entitlement to TDIU on October 12, 2007. Since the date of his claim, the Veteran has had two different periods of combined evaluations with 90 percent from May 21, 2007; and 100 percent from January 2, 2009. Accordingly, the Veteran's service-connected disabilities have met the threshold minimum requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) throughout the appeal period, that is, without having to resort to the special extra-schedular provisions of § 4.16(b). See also 38 C.F.R. §§ 3.321(b)(1) and Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Since the Veteran meets the threshold rating criteria under 38 C.F.R. § 4.16(a), a determination needs to be made as to whether the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities.
The determinative issue is whether he is unable to return to the workforce and obtain and maintain substantially gainful employment as a consequence of his service-connected disabilities See 38 C.F.R. § 3.340 (indicating the circumstances in which occupational impairment is considered total and permanent in its scope). The fact that a Veteran is unemployed is not enough. The question is whether his service-connected disorders without regard to his nonservice-connected disorders or lack of work skills or advancing age made him incapable of performing the acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993).
As an initial matter, the Board notes that since January 2, 2009, the Veteran has been in receipt of a 100 disability rating for bilateral eye disorders, and the question of whether the TDIU claim is therefore moot, must be addressed. In this regard, on June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot).
However, subsequently, the United States Court of Appeals for Veterans Claims issued a decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of Special Monthly Compensation, therefore, the issue of entitlement to TDIU before the Board is not moot. Accordingly, to the extent that the appeal period in this case extends from October 12, 2007 when the TDIU claim was filed, and prior to the grant of both a 100 percent schedular rating for bilateral eye disorders and the grant of SMC based on light perception only, effective from January 2, 2009, the TDIU claim is not moot.
The Board notes that entitlement to a TDIU was denied in an April 2008 rating decision. It was explained that although the minimum schedular requirements for TDIU were met, the record did not show that the Veteran terminated past employment due solely to a service-connected disability or that his service-connected disabilities alone, precluded him from all forms of substantially gainful employment. Essentially, in denying the claim the RO found that the evidence did not definitely show that one or more service-connected disabilities rendered the Veteran unemployable. For reasons explained below, the Board disagrees with this finding and concludes that the claim should be granted.
Evidence on file reflects that the Veteran has a college degree and worked for the USPS for 20 years from 1985 to 2005, at which time he voluntarily retired. His lay statements reveal that the reasons for his decision to retire involved his service connected disabilities, which were impacting his mobility, sight and hearing.
Arguably, when evaluated individually, no single service-connected condition renders the Veteran unemployable. However, collectively, the evidence supports the Veteran's claim that he is significantly functionally and industrially impaired due to his service-connected disorders, as indicated by the combined rating of 90, then 100 percent during the appeal period. The various service-connected disabilities impact the Veteran in the following ways: (1) diabetes - requiring medication and diet control; (2) hearing loss -manifested by significant bilateral hearing impairment assessed as 30 percent disabling and impaired speech recognition, required hearing aids; (3) tinnitus - recurrent, assessed as 10 percent disabling; (4) a left shoulder disability - manifested by limitation and impairment of function and motion; (5 and 6) peripheral neuropathy of both lower extremities productive of pain, numbness and mobility impairment. Most importantly, the Veteran's service connected eye disorders (7) are productive of loss of sight to the point where the Veteran's cannot obtain a driver's license and cannot read. The Veteran reports that as a result of his service-connected eye problems he was involved in 2 accidents while still employed (leading to his decision to retire), and has been unable to obtain employment elsewhere.
The Board observes in this case, that fact that the Veteran has numerous service-connected conditions suggest that the collective limitations and impairment caused by these conditions would make it difficult for the Veteran 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 the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here it is the nature and severity of his service-connected conditions which compel the Board to determine that he is not capable of performing the physical and mental acts required by employment. Essentially, the combination of his disabilities; which are orthopedic, neurological and sensory in nature, impacting numerous functions including sight, hearing and mobility, rendering him unable to read or drive, support such a finding .
The Board could remand this case for an opinion that reconciles all of the lay and medical information on file; however, the record as it stands implicates the Veteran's service-connected disabilities, particular his eye disorders, hearing loss and diabetes-related neurological conditions of the lower extremities, as significant impediments to his employability, as explained herein. Therefore, the Board concludes that remand is not necessary here. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose.) Veterans should cite this case when appealing to prevent a remand when an award is appropriate.
Pursuant to the above discussion, as the Veteran has many disabilities, both service-connected and not, there can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of- the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). The Board is of the opinion that at minimum, the point of equipoise has been reached in this matter. Overall, the evidence demonstrates that the Veteran's service-connected disabilities alone are significant enough in their own right to preclude him from obtaining substantially gainful employment.
Therefore, after careful review of the record, and in giving considerable weight to the Veteran's credible statements and the findings shown on the Veteran's VA treatment records, and VA examinations, and giving the benefit of any doubt to the Veteran, the Board finds the evidence for and against the claim to be at least in approximate balance. Under such circumstances, resolution of all reasonable doubt shall be in the Veteran's favor. Therefore, entitlement to TDIU is warranted and the claim is granted.
ORDER
A total disability rating based on individual unemployability due to service-connected disabilities is granted, subject to the regulations controlling disbursement of VA monetary benefits.
Question
broncovet
My comments are in Red. Cite the second comment when appealing your TDIU so you dont get on the remand hamster wheel like I did.
Analysis
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2011). A finding of total disability is appropriate "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(a)(1), 4.15 (2011).
A TDIU rating may be assigned where the schedular rating is less than total, (Notice that it did not say that a total rating precludes IU) 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 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2011). In determining whether the Veteran is entitled to a TDIU rating, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19 (2011).
In Beaty v. Brown, 6 Vet. App. 532, 537 (1994), the Court indicated that the Board cannot deny the Veteran's claim for total rating based on individual unemployability without producing evidence, as distinguished by mere conjecture, that the Veteran can perform work.
In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective versus objective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCREC 75-91 (Dec. 27, 1991)....
....
The Veteran filed his claim of entitlement to TDIU on October 12, 2007. Since the date of his claim, the Veteran has had two different periods of combined evaluations with 90 percent from May 21, 2007; and 100 percent from January 2, 2009. Accordingly, the Veteran's service-connected disabilities have met the threshold minimum requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) throughout the appeal period, that is, without having to resort to the special extra-schedular provisions of § 4.16(b). See also 38 C.F.R. §§ 3.321(b)(1) and Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Since the Veteran meets the threshold rating criteria under 38 C.F.R. § 4.16(a), a determination needs to be made as to whether the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities.
The determinative issue is whether he is unable to return to the workforce and obtain and maintain substantially gainful employment as a consequence of his service-connected disabilities See 38 C.F.R. § 3.340 (indicating the circumstances in which occupational impairment is considered total and permanent in its scope). The fact that a Veteran is unemployed is not enough. The question is whether his service-connected disorders without regard to his nonservice-connected disorders or lack of work skills or advancing age made him incapable of performing the acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993).
As an initial matter, the Board notes that since January 2, 2009, the Veteran has been in receipt of a 100 disability rating for bilateral eye disorders, and the question of whether the TDIU claim is therefore moot, must be addressed. In this regard, on June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot).
However, subsequently, the United States Court of Appeals for Veterans Claims issued a decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of Special Monthly Compensation, therefore, the issue of entitlement to TDIU before the Board is not moot. Accordingly, to the extent that the appeal period in this case extends from October 12, 2007 when the TDIU claim was filed, and prior to the grant of both a 100 percent schedular rating for bilateral eye disorders and the grant of SMC based on light perception only, effective from January 2, 2009, the TDIU claim is not moot.
The Board notes that entitlement to a TDIU was denied in an April 2008 rating decision. It was explained that although the minimum schedular requirements for TDIU were met, the record did not show that the Veteran terminated past employment due solely to a service-connected disability or that his service-connected disabilities alone, precluded him from all forms of substantially gainful employment. Essentially, in denying the claim the RO found that the evidence did not definitely show that one or more service-connected disabilities rendered the Veteran unemployable. For reasons explained below, the Board disagrees with this finding and concludes that the claim should be granted.
Evidence on file reflects that the Veteran has a college degree and worked for the USPS for 20 years from 1985 to 2005, at which time he voluntarily retired. His lay statements reveal that the reasons for his decision to retire involved his service connected disabilities, which were impacting his mobility, sight and hearing.
Arguably, when evaluated individually, no single service-connected condition renders the Veteran unemployable. However, collectively, the evidence supports the Veteran's claim that he is significantly functionally and industrially impaired due to his service-connected disorders, as indicated by the combined rating of 90, then 100 percent during the appeal period. The various service-connected disabilities impact the Veteran in the following ways: (1) diabetes - requiring medication and diet control; (2) hearing loss -manifested by significant bilateral hearing impairment assessed as 30 percent disabling and impaired speech recognition, required hearing aids; (3) tinnitus - recurrent, assessed as 10 percent disabling; (4) a left shoulder disability - manifested by limitation and impairment of function and motion; (5 and 6) peripheral neuropathy of both lower extremities productive of pain, numbness and mobility impairment. Most importantly, the Veteran's service connected eye disorders (7) are productive of loss of sight to the point where the Veteran's cannot obtain a driver's license and cannot read. The Veteran reports that as a result of his service-connected eye problems he was involved in 2 accidents while still employed (leading to his decision to retire), and has been unable to obtain employment elsewhere.
The Board observes in this case, that fact that the Veteran has numerous service-connected conditions suggest that the collective limitations and impairment caused by these conditions would make it difficult for the Veteran 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 the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here it is the nature and severity of his service-connected conditions which compel the Board to determine that he is not capable of performing the physical and mental acts required by employment. Essentially, the combination of his disabilities; which are orthopedic, neurological and sensory in nature, impacting numerous functions including sight, hearing and mobility, rendering him unable to read or drive, support such a finding .
The Board could remand this case for an opinion that reconciles all of the lay and medical information on file; however, the record as it stands implicates the Veteran's service-connected disabilities, particular his eye disorders, hearing loss and diabetes-related neurological conditions of the lower extremities, as significant impediments to his employability, as explained herein. Therefore, the Board concludes that remand is not necessary here. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose.) Veterans should cite this case when appealing to prevent a remand when an award is appropriate.
Pursuant to the above discussion, as the Veteran has many disabilities, both service-connected and not, there can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of- the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). The Board is of the opinion that at minimum, the point of equipoise has been reached in this matter. Overall, the evidence demonstrates that the Veteran's service-connected disabilities alone are significant enough in their own right to preclude him from obtaining substantially gainful employment.
Therefore, after careful review of the record, and in giving considerable weight to the Veteran's credible statements and the findings shown on the Veteran's VA treatment records, and VA examinations, and giving the benefit of any doubt to the Veteran, the Board finds the evidence for and against the claim to be at least in approximate balance. Under such circumstances, resolution of all reasonable doubt shall be in the Veteran's favor. Therefore, entitlement to TDIU is warranted and the claim is granted.
ORDER
A total disability rating based on individual unemployability due to service-connected disabilities is granted, subject to the regulations controlling disbursement of VA monetary benefits.
Source: http://www.va.gov/vetapp12/files5/1235345.txt Thanks Berta!!
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broncovet
My comments are in Red. Cite the second comment when appealing your TDIU so you dont get on the remand hamster wheel like I did.AnalysisIt is the established policy of VA that all veterans who are un
Navy04
Bronco, Thank you very much for this post. I am actually trying to get my info together, to figure how all this works. Another Great Vet on the site is helping me, put it together hopefully. This fi
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