15-03 891
15-03 891
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served Mar 1964–Jan 1968 and appealed a denial of TDIU to the Board; appeal perfected Jan 16, 2015.
- Combined schedular service-connected rating is 50% with no single rating over 30%; vertigo restored to 30% by the Board.
- Medical records document objective vestibular pathology (2010 caloric test: 33% right weakness) and frequent vertigo/dizziness episodes (daily to 2–3 times weekly), with associated nausea, concentration problems, balance loss, and drowsiness from medications.
- Veteran’s recent work was as a courier (driving) and property insurance adjuster (climbing ladders, roof inspections); employer suspended/terminated him for inability to obtain medical clearance.
- RO originally concluded schedular TDIU criteria were not met and did not refer for extraschedular consideration; Board found evidence sufficient to warrant referral and remanded for referral to Undersecretary for Benefits or Director, Compensation and Pension for extraschedular TDIU consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to TDIU (schedular) | Veteran contends vertigo and other service-connected disabilities preclude substantially gainful employment | RO concluded schedular criteria not met (combined 50%; no single ≥40% or single ≥60%) | Board found schedular criteria not met but evidence shows inability to perform past work; remand for extraschedular referral |
| Whether referral for extraschedular TDIU is required | Veteran asserts severity/frequency of vertigo warrants extraschedular TDIU | RO did not refer under 38 C.F.R. § 3.321(b)(1) | Board held record contains substantial competent evidence triggering referral for extraschedular consideration and remanded for referral |
| Validity of Veteran’s Notice of Disagreement with RO’s March 2016 action | Veteran filed a VA Form 21‑0958 identifying TDIU and vertigo rating | RO action merely implemented Board decision (administrative, not adjudicative) | Board concluded no valid NOD as to those matters; advised motion for reconsideration or appeal to Veterans Court |
Key Cases Cited
- Floyd v. Brown, 9 Vet. App. 88 (1996) (Board cannot make initial extraschedular rating determinations delegated to VA first‑line officials)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence after remand and is entitled to participation in development, including exams)