16-01 947
16-01 947
Board of Vet. App.Jul 21, 2017Background
- Veteran served on active duty Nov 1976–Aug 1978 and is represented by DAV.
- Service-connected disabilities: PTSD (50%) and bilateral left eye condition (10%); combined rating 10% from May 27, 2010 and 60% from March 7, 2011.
- Veteran filed for TDIU (total disability based on individual unemployability) asserting unemployability due to PTSD.
- A pending claim for increased PTSD rating (in excess of 50%) is under development; responses from an October 2015 VA examiner remain outstanding.
- Record evidence (June 2014 VA exam) indicates job losses due to impaired impulse control and inappropriate behavior related to psychiatric disorders.
- Board remanded the TDIU claim for further development and deferred adjudication pending resolution of the increased-rating claim; directed extraschedular referral if schedular criteria remain unmet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU | Veteran contends PTSD prevents substantially gainful employment | VA contends current combined rating does not meet schedular TDIU thresholds | Remanded: adjudication deferred until increased-rating claim resolved; consider extraschedular TDIU if schedular criteria unmet |
| Interaction of increased-rating claim with TDIU | Increased PTSD rating could affect TDIU outcome | AOJ requested more examiner responses; development incomplete | Board found claims intertwined and ordered completion of development before TDIU decision |
| Extraschedular referral under 38 C.F.R. § 4.16(b) | Veteran’s work history shows impairment (job losses due to impulse control) warranting extraschedular consideration | N/A (VA must evaluate after schedular denial) | If schedular criteria not met after development, refer to Director of Compensation Service for extraschedular consideration |
| Duty to provide Supplemental Statement of the Case (SSOC) and appellate rights | Veteran entitled to notice and opportunity to respond if claim not granted | AOJ must provide SSOC and opportunity to respond after development | Board ordered SSOC and return to Board if relief not granted |
Key Cases Cited
- Hatlestad v. Brown, 5 Vet. App. 524 (establishes that TDIU inquiry focuses on whether service-connected disabilities alone preclude substantially gainful employment)
- Harris v. Derwinski, 1 Vet. App. 180 (claims that are intertwined require joint adjudication)
- Kutscherousky v. West, 12 Vet. App. 369 (veteran may submit additional evidence and argument after remand)