Veteranclaims’s Blog

August 14, 2015

Single Judge Application; Claimant Substitution; section 5121A; VA Fast Letter 10-30 (Aug. 10, 2010); Copeland v. Shinseki, 26 Vet.App. 86, 88 (2012)

Excerpt from decision below:

“Because Mr. Todd died after October 10, 2008, the Court on July 23, 2014, permitted Mrs. Todd to substitute under the auspices of 38 U.S.C. § 5121A. See Hyatt v. Shinseki, 566 F.3d 1364, 1367 n.1 (Fed. Cir. 2009); Breedlove v. Shinseki, 24 Vet.App. 7, 15 (2010) (per curiam order). VA has recognized that for a survivor substituted under section 5121A, a decision as to entitlement to accrued benefits is not restricted
to consideration of the evidence contained in the
claims file at the time of the deceased VA claimant’s death. See VA Fast Letter 10-30 (Aug. 10, 2010) (“Unlike prior accrued benefits claims, [under section 5121A] the record is not closed on the date of death of the original claimant[ ]but remains open for the submission and development of any pertinent additional evidence.”); see also Copeland  v. Shinseki, 26 Vet.App. 86, 88 (2012) (“The Secretary’s proposed interpretation of [section 5121A] is that a substitute claimant—as opposed to an accrued benefits claimant—’could submit evidence and generally would have the same rights regarding hearings, representation, and appeals as would have applied to the claimant had the claimant not died.'” (quoting Substitution in Case of Death of Claimant, 76 Fed. Reg. 8666,  8669 (proposed Feb. 15, 2011) (to be codified at 38 C.F.R. § 3.10(f)(3)))). Thus, additional evidence may be developed on remand, and Mrs. Todd is not confined to the evidence in the file at the date of the veteran’s death.”

==================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0067
EVELYN M. TODD, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided September 3, 2014)
Michael P. Boudett, of Boston, Massachusetts, was on the brief for the
appellant.
Will A. Gunn, General Counsel; David L. Quinn, Assistant General Counsel;
Richard
Mayerick,DeputyAssistantGeneralCounsel, andMoniqueA.S.Allen,
allofWashington,D.C., were
on the brief for the appellee.1
Before KASOLD, Chief Judge, and MOORMAN and BARTLEY, Judges.
BARTLEY,Judge: VeteranRobertM.ToddappealedthroughcounselaDecember20,2012,
Board of Veterans’ Appeals (Board) decision denying an evaluation in
excess of 80% for bilateral
defective hearing on an extraschedular basis pursuant to 38 C.F.R. § 3.
321 and entitlement to a total
disability evaluation based on individual unemployability (TDIU). Record (
R.) at 3-12. On April
6, 2014, after briefing had been completed, Mr. Todd died. On July 7, 2014,
counsel filed a notice
of death, a copy of Mr. Todd’s death certificate, and a motion to
substitute as appellant the veteran’s
surviving spouse, Evelyn M. Todd. The Court granted the motion on July 23,
2014, and will
consider the arguments advanced by the veteran as Mrs. Todd’s own.
This appeal is timely and the Court has jurisdiction to review the Board’s
decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Given the facts of this case and
the lack of recent binding
Will A. Gunn was General Counsel for the Secretary when his brief was
submitted to the Court, but as of the
date this decision was issued, Mr. Gunn had resigned.
1

precedent addressing certain aspects of TDIU evaluations, disposition by
panel is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will set
aside the December 2012 Board decision and remand those matters for
additional development and
readjudication, for purposes of entitlement to accrued benefits,
consistent with this decision.
I. FACTS
Mr. Todd served on active duty in the U.S. Air Force from February 1952 to
March 1954.
R. at 521. In March 2009, he sought service connection for bilateral
hearing loss based upon in-
service exposure to jet engine noise. R. at 481-83, 487-97. He submitted a
March 2009 private
audiologist letter stating that the veteran suffered from “moderate
sloping to profound sensorineural
hearing loss bilaterally” and opining that this loss was as likely as not
related to service based on the
veteran’s report of in-service noise exposure. R. at 446.
In May 2009, the veteran submitted a statement in which he reiterated the
nature of his in-
service exposure to noise and recounted a history of deteriorating hearing
and the effect it had on his
employment. He stated that, as part of his military duties at Craig Air
Force Base in Alabama, he
made frequent trips to the flight line where he was subjected to the noise
of jet engines and the
inhalation of jet exhaust fumes. R. at 413. While working for an
engineering companyin the 1970s,
Mr. Todd “noticed that [he] was having some difficulty in talking on the
telephone and
understandingconversation in a nois[y] room.” Id. By1991, the veteran
asserted, “[his] hearing had
deteriorated to the point that [he] was reduced to entry level positions”;
he was informed that he
would not be able to keep his job as an office manager if he did not
obtain hearing aids. R. at 415.
At the time of writing, Mr. Todd said that even with hearing aids he could
no longer speak on the
telephone “with any degree of understanding as to what the other party is
saying” and that even in-
person conversations were difficult. Id.; see also R. at 483 (March 2008
statement: “I am now
medicallydisabled and cannot work.”). Also in May2009, a VA audiologist
opined that hearing loss
was at least as likely as not caused by Mr. Todd’s service. R. at 426-27.
The VA regional office (RO) in July 2009 granted service connection for
bilateral hearing
loss and assigned a 30% evaluation effective March 23, 2009. But the RO
denied entitlement to
TDIU, stating “the claimant has not been found unable to secure or follow
a substantially gainful
2

occupation as a result of service connected disabilities.” R. at 398-408.
The following month, Mr.
Todd filed a Notice of Disagreement (NOD) as to the 30% evaluation
assigned and the denial of
TDIU. In the NOD, he stated that he had been terminated from his
engineering job because, even
with hearing aids, his hearing was so degraded that he posed a liability
to himself and other workers;
he was required in 2002 to obtain another set of hearing aids to enable
him to hear well enough to
keep his job; he was unable to carry on as a Sunday school teacher because
he could “no longer
understand the statements, questions, or responses of the participants”;
he is unable to communicate
via the telephone anymore; and he is “virtually isolated” and ”
unemployable” because of his hearing
loss. R. at 384, 387. The RO continued to deny TDIU and a higher
evaluation for hearing loss (R.
at 291-315), and Mr. Todd appealed to the Board (R. at 274-85 (reiterating
problems that hearing
loss posed to obtaining and maintaining employment)).
The veteran testified at an April 2011 Board hearing that he has
difficulty understanding
people during conversation if there is any “extraneous noise around” and
that “99 times out of 100”
he is unable to hear telephone calls. R. at 220. He further testified that
this difficultyhearing caused
him to avoid contact with others and that he refrained from driving on
advice that his difficulty
hearing posed a hazard on the road. R. at 221-22. A letter from Mrs. Todd,
the veteran’s spouse,
reiterated these problems. R. at 245-47. In June 2011, the Board remanded
the hearing loss claim
for a VA audiology examination and referred the TDIU matter to the RO.2
R. at 156-72.
After administering a November 2011 audiology examination, the VA examiner
diagnosed
hearing loss and tinnitus; opined that hearing loss affected the ordinary
conditions of daily life,
including the ability to work; and stated that Mr. Todd, even with the use
of hearing aids, will
experience difficulty understanding conversational speech and “will likely
be limited in his ability
to function effectively in an employment setting that requires receptive
communication skills,
especially if the setting includes background noise.” R. at 148-49. In
December 2011, the RO
increased the hearing loss evaluation to 80%, but no higher, and granted
service connection for
tinnitus with a 10% evaluation, both effective November 9, 2011. R. at 124-
40. Bywayof a January
The Board stated that referral of TDIU was necessarybecausethe issue had
not been adjudicated bythe agency
of original jurisdiction (R. at 158), despite the fact that the RO had
previously adjudicated the matter (R. at 293, 313,
404).
2
3

5, 2012, letter, VA informed Mr. Todd of the increased benefits and also
that he may qualify for VA
vocational rehabilitation employment services. VA enclosed VA Form 28-8890
, “Important
Information about Vocational Rehabilitation Benefits,” R. at 133, which
informs veterans, among
other things, that the VA vocational rehabilitation program helps them
prepare for, get, and keep a
suitable job and that, after a veteran applies for the program, a VA
counselor schedules an evaluation
requiring several hours to complete, the results of which are used to
decide whether the veteran
meets the conditions to receive vocational rehabilitation.
Also in January 2012, VA obtained the following audiology opinion as to Mr.
Todd’s
employability:
[The v]eteran has severe bilateral sensorineural hearing loss with poor
word
recognition ability. This hearing loss would significantly impact his
ability to
function in an employment setting where he was dependent upon verbal
communication, even face-to-face in quiet [settings], or where he needed
to depend
onhis hearingto differentiatesounds orsignals(medicalmonitoring,
troubleshooting
electronics or motors, etc.). While his choices of employment might be
somewhat
limited, and assistive devices might be required, the hearing loss alone
would not
preclude him from obtaining gainful employment in a context where
interpersonal
communication or auditory monitoring is not required. Many deaf
individuals have
rewarding careers in a variety of employment fields. This opinion . . . is
in regards
to the veteran’s hearing loss alone, and does not address the difficulties
posed by his
age or other disabilities.
R. at 92.
In February 2012, the Board denied an initial schedular evaluation for
bilateral hearing loss
in excess of 30% prior to November 9, 2011, and a schedular evaluation in
excess of 80% from
November 9, 2011;3
and remanded for VA to adjudicate the issues of an extraschedular
evaluation
for bilateral hearing loss and TDIU, which the RO had not addressed
despite several statements by
the veteran and his spouse that he had been terminated from jobs due to
hearing loss. R. at 74-88.
In September 2012, the RO issued a Supplemental Statement of the Case (
SSOC) denying (1)
extraschedularevaluation because the casedid not present “such an
exceptional or unusual disability
picture” and (2) TDIU because the evidence did not show that service-
connected bilateral hearing
loss prevented him from securing and maintaining gainful employment. R. at
39-45.
Mr. Todd did not appeal the Board’s denial of an increased schedular
evaluation for bilateral hearing loss to
this Court.
3
4

In an October 2012 response to the SSOC, Mr. Todd stated that, according
to personnel at
the local VA Vocational Rehabilitation and Employment Center, there were
no facilities available
to train him for a work environment that did not require interpersonal
communication and auditory
skills nor were there any potential employers seeking employees without
interpersonal
communication and auditory skills. R. at 17-18. That same month, the
veteran submitted another
TDIU application and indicated that his employment had ended in January
2003 because of service-
connected disability. R. at 19-20.
In the December 2012 decision on appeal, the Board found that all
necessary development
had been accomplished, all VA and private medical records had been
obtained, and all VA opinions
and examinations of record were adequate. R. at 6. The Board then denied
entitlement to TDIU and
an extraschedular evaluation in excess of 80% for bilateral hearing loss.
In denying referral for
extraschedularevaluation under§3.321,
theBoarddeterminedthattheschedularcriteriasufficiently
contemplated Mr. Todd’s disability picture and that the evidence does not
demonstrate such factors
as marked interference with employment or frequent periods of
hospitalization beyond that
contemplated in the assigned 80% schedular rating. R. at 6-10. And,
although the veteran met the
disability percentage criteria under 38 C.F.R. § 4.16(a) for TDIU
evaluation, the Board concluded
that “the evidence fails to show that the [v]eteran’s service-connected
hearing loss, alone, or in
combinationwith his onlyotherservice-connecteddisability,tinnitus,
precludessubstantiallygainful
employment.” R. at 11. The Board stated that, “[f]or a veteran to prevail
on a claim for TDIU, the
record must reflect some factor [that] takes this case outside the norm.”
R. at 11. The Board noted
that “the [v]eteran’s service[-]connected disabilities have not been so
severely disabling as to have
rendered him or the average person similarlysituated unable to secure or
follow substantiallygainful
employment.” Id. In denying both issues, the Board relied on the January
2012 VA audiology
opinion. R. at 8-9, 11. This appeal followed.
II. ANALYSIS
On appeal, Mrs. Todd seeks reversal and argues that the Board clearly
erred in denying
entitlement to TDIU by relying on the January 2012 VA examiner’s
observations on the
employabilityof deafindividuals in general andbyignoringthe medical and
layevidence supporting
5

entitlement to TDIU in his particular case. Appellant’s Brief (Br.) at 5-
11. In the alternative, she
argues that the decision should be set aside and the matter remanded for
the Board to provide an
adequate statement of reasons or bases why, based on the specifics of his
case, the veteran was not
entitled to TDIU. Id. at 11-14. Finally, Mrs. Todd makes the same
arguments with respect to the
issue of referral for extraschedular evaluation. Id. at 17. The Secretary
disputes Mrs. Todd’s
arguments as to the adequacyof the January2012 examination report and
contends that the evidence
of record does not show entitlement to TDIU. Secretary’s Br. at 9-12. The
Secretary also contends
that the Board properly found that referral for extraschedular evaluation
was not warranted. Id. at
5-8.
A. Entitlement to TDIU
It is well established in our caselaw that determining entitlement to TDIU
requires an
individualized assessment of each veteran to determine whether he or she
is “in the judgment of the
rating agency, unable to secure or follow a substantially gainful
occupation as a result of
service-connecteddisabilities.” 38C.F.R.§4.16(a)(2014);seeVanMeter v.
Brown,4Vet.App.477,
479 (1993); Hatlestad v. Derwinski, 3 Vet.App. 213, 215-217 (1992); see
also Norris v. West,
12 Vet.App. 413, 421 (1999) (“‘[A] claim for TDIU is basedon an
acknowledgmentthat even though
a rating less than 100% under the rating schedule may be correct,
objectively, there are subjective
factors that may permit assigning a 100% rating to a particular veteran
under particular facts . . . ‘”
(quoting Parker v. Brown, 7 Vet.App. 116, 118 (1994))). Thus, unlike the
percentage ratings in part
4 of title 38 of the Code of Federal Regulations, which are based on the
average impairment in
earning capacitycaused bythe service-connected disability, see 38 C.F.R. §
4.1 (2014), “entitlement
to TDIUisbasedonanindividual’sparticularcircumstances,”Ricev.Shinseki,22
Vet.App. 447, 452
(2009). Accord Locklear v. Shinseki, 24 Vet.App. 311, 316 (2011).
The personalized nature of TDIU determinations is evident from the title
of § 4.16: “Total
disability ratings for compensation based on unemployability of the
individual.” 38 C.F.R. § 4.16
(emphasis added). As a December 1991 VA General Counsel precedent opinion
interpreting § 4.16
held, TDIU determinations are to be made “without regard to whether an
average person would be
rendered unemployable under the circumstances.” VA Gen. Coun. Prec. 75-91,
at 8 (Dec. 27, 1991).
Although not bound by VA General Counsel precedent opinions, this Court in
1993 declared
6

“substantial agreement” with this opinion, finding that “‘Congress . . .
has authorized consideration
in disabilityratings of factors affectingthe individual veteran, rather
than the ‘average person’, where
necessaryto reflect the veteran’s true level of disability.'” Hatlestad, 3
Vet.App. at 216 (quoting VA
Gen. Coun. Prec. 75-91, at 8).
Mrs. Todd argues that the Board erred because it accepted and relied upon
that part of the
January 2012 audiology report that stated that the veteran could obtain
gainful employment because
“[m]any deaf individuals have rewarding careers in a variety of employment
fields.” R. at 92; see
R. at 9, 11. However, we are not fully persuaded by Mrs. Todd’s argument.
We agree that, had the
examiner opined solelythat Mr. Todd
wascapableofsubstantiallygainfulemploymentbecause deaf
persons on average are able to procure and maintain substantially gainful
employment, and had the
Board relied entirelyon that opinion to denyentitlement, that decision
would be erroneous. We also
agree that whether people with a disability like the veteran’s are usually
employable is generally not
relevant to TDIU determinations, which are based on an individual’s
specific circumstances. Any
reference to whether other individuals, or others as a group, are
generally employable despite a
particular disability, without further, careful explanation, may indicate
that the Board gave undue
consideration to irrelevant and potentially prejudicial information.
However, we find no prejudicial
error here. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due
account of the rule of
prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (noting
that the statute requiring
this Court to “take due account of prejudicial error [ ] requires the
Veterans Court to apply the same
kind of ‘harmless error’ rule that courts ordinarily apply in civil cases”).
The VA examiner discussed Mr. Todd’s particular disabilityand complaints
and assessed his
ability to obtain gainful employment. R. at 92. The Board stated that “the [
v]eteran’s service-
connected disabilities have not been so severely disabling as to have
rendered him or the average
person similarly situated unable to secure or follow substantially gainful
employment.” R. at 11
(emphasis added). The Board’s specific reference to the veteran, with an
alternative reference to
others”similarlysituated,”
indicatesthattheBoardconsideredtheJanuary2012audiologist’sopinion
as an individualized assessment. See Janssen v. Principi, 15 Vet.App. 370,
379 (2001) (per curiam)
(renderingdecision on the Board’s statement of reasons or bases “as a
whole”). Although the Board’s
choice of words may not have been optimal, its discussion and assessment
of Mr. Todd’s individual
7

circumstances made clear that it did not engage in prohibited analysis by
considering the effects of
theaverageimpairmentofveteransasopposedto
conductingapersonalizedassessmentofMr.Todd.
Although we find no prejudicial error as to that aspect of the Board
decision, the Board is
required to specifically address material record evidence that is
potentially favorable to the claim.
See Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam order). In
his October2012 letter,
Mr. Todd stated that personnel at the Vocational Rehabilitation and
Employment Center4
had
informed him that with his hearing loss there were no facilities available
to train him and that there
were no potential employers seeking to employ people with his disability.
R. at 17-18. He also
indicated that he had undergone some type of vocationalrehabilitation
evaluation that painted a grim
picture of his ability to obtain gainful employment. Id.
Veterans like Mr. Todd, with a service-connected disabilitythat is at
least 10% disabling, are
eligible for VA vocational rehabilitation benefits. See 38 U.S.C. §§
3100-3122; 38 C.F.R. § 21.1
etseq.(2014). ThepurposeofVAvocationalrehabilitation
andemploymentprogramsis”toprovide
for all services and assistance necessary to enable veterans with service-
connected disabilities to
achieve maximum independence in daily living and, to the maximum extent
feasible, to become
employable and to obtain and maintain suitable employment.” 38 U.S.C. §
3100; accord 38 C.F.R.
§ 21.1. To that end, VA provides initial and extended evaluations to
determine a veteran’s
employmenthandicapandthefeasibilityofachievingavocationalgoal. 38C.F.R.
§§21.50-.53,.57-
.59.
The failure to address the potentially favorable material evidence
referenced in Mr. Todd’s
October 2011 letter frustrates judicial review. See Thompson, 14 Vet.App.
at 188; Allday v. Brown,
7 Vet.App. 517, 527 (1995) (holding that the Board’s statement “must be
adequate to enable a
claimant to understand the precise basis for the Board’s decision, as well
as to facilitate review in this
Court”); see also Foster v. Principi, 4 Vet.App. 35, 36 (1993) (finding
error in the Board’s failure
to discuss vocational rehabilitation and employment records).
Because VA vocational rehabilitation services are provided by VA’s
Vocational Rehabilitation and
Employment program, we presume that this is the office to which Mr. Todd
referred.
See
http://www.benefits.va.gov/vocrehab/index.asp
8

We also note that, not only did the Board not address this evidence, but
it appears that the
Board did not even obtain the evidence referenced in the October 2012
letter because the record of
proceedings does not contain Vocational Rehabilitation and Employment
Center records covering
the period addressed in that letter. See U.S. VET.APP.R.28.1 (stating that
the record of proceedings
before the Court should contain all records relevant to the issues on
appeal).
The duty to assist includes making “as many requests as are necessary to
obtain relevant
records from a Federal department or agency.” 38 C.F.R. § 3.159(c)(2) (
2014). “VA will end its
efforts to obtain [such] records . . . only if VA concludes that the
records sought do not exist or that
further efforts to obtain those records would be futile.” Id. Board
determinations as to whether the
Secretary has fulfilled the duty to assist are findings of fact subject to
the “clearly erroneous”
standard of review. 38 U.S.C. § 7261(a)(4); Nolen v. Gober, 14 Vet.App.
183, 184 (2000). On
remand, the Board is required to obtain all potentially relevant records
that the claimant adequately
identifies and authorizes the Secretary to obtain. See 38 U.S.C. § 5103A(
a)(1), (b)(1); Moore v.
Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009); 38 C.F.R. § 3.159(c).
In addition, the Board stated that, in deciding entitlement to TDIU, it
relied on the January
2012 VA audiologyexamination and other “objective evidence of record.” R.
at 11. The Board then
denied entitlement to TDIU because “the preponderance of the medical
evidence of record show[ed]
that the service-connected disabilities do not result in [TDIU].” R. at 11 (
emphasis added). The
Board must provide an adequate statement of reasons or bases for its
findings on all material issues
of fact and law presented. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57
(1990). To complywith this requirement, the Board must analyze the
credibilityand probative value
of the evidence, account for the evidence that it finds persuasive or
unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to the
claimant. Allday, 7 Vet.App. at
527; Caluza v. Brown, 7 Vet.App. 498, 507 (1995), aff’d per curiam, 78 F.
3d 604 (Fed. Cir. 1996)
(table).
The Court agrees with Mrs. Todd that the Board failed to adequatelyaddress
additional non-
medical evidence that is potentially relevant to the TDIU determination.
See Allday, 7 Vet.App. at
527; Caluza, 7 Vet.App. at 507 (1995). Mr. Todd provided to VA repeated
explanations of the effect
of his hearing loss on his ability to function and gain employment. He
indicated that his hearing loss
9

affected him so severely that he could no longer use the telephone, could
barely understand face-to-
face conversations, and forwent driving out of safety concerns; he stated
that his disability had
caused him to be fired from two jobs, he is not currently working, and he
is unable to obtain work
due to his service-connected hearing loss. R. at 220-22, 274-85, 384, 387,
413, 415, 483. As noted
above, he stated in his October 2012 letter that the local VA Vocational
Rehabilitation and
Employment Center advised him that there were no facilities available to
train him for a work
environment that does not require interpersonal communication and auditory
skills nor were there
any potential employers seeking employees without these skills. R. at 17-
18. Mrs. Todd also
provided lay statements affirming the effect of hearing loss on Mr. Todd’s
ability to work and
function in society. R. at 245-47. The Board’s failure to address this
favorable non-medical
evidence relevant to the TDIU determination is another basis for remand.
See Allday, 7 Vet.App.
at 527; Caluza, 7 Vet.App. at 507 (1995).
Insum, becausetheBoardfailedtoaddresspotentiallyfavorablematerial evidence,
theCourt
will set aside the December 2012 decision on appeal and remand the matter
for additional
development and readjudication consistent with this decision. See Tucker v.
West, 11 Vet.App. 369,
374 (1998) (holding that remand is the appropriate remedy”where the Board
has incorrectly applied
the law, failed to provide an adequate statement of reasons or bases for
its determinations, or where
the record is otherwise inadequate”).
Although Mrs. Todd argues that reversal is appropriate, the Court
disagrees. “[W]here the
Board has performed the necessary fact-finding and explicitly weighed the
evidence, [this Court]
should reverse when, on the entire evidence, it is left with the definite
and firm conviction that a
mistake has been committed.” Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed.
Cir. 2013); see
Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992). In other words, reversal is
appropriate “when the
only permissible view of the evidence is contrary to the Board’s decision.”
Gutierrez v. Principi,
19 Vet.App. 1, 10 (2004). Here, the Board failed to explicitly weigh
potentially favorable material
evidence. Thus, reversal is not appropriate. See Deloach, 704 F.3d at 1380.
In light of the Court’s decision, the Board must address the potentially
favorable material
record evidence, obtain such referenced evidence if not alreadyin the
record, and determine whether
Mr.Toddcouldsecureorfollowasubstantiallygainfuloccupation
orwhetherfurtherevidenceneeds
10

to be developed.5
See Tyrues v. Shinseki, 23 Vet.App. 166, 182-84 (2009) (en banc), vacated
and
remanded, 467 F. App’x 889 (Fed. Cir. 2012), reinstated as modified by 26
Vet.App. 31 (2012), aff’d
by 732 F.3d 1351 (Fed. Cir. 2013); 38 C.F.R. § 19.9(a) (2014) (“If
further evidence, clarification of
the evidence, correction of a procedural defect, or any other action is
essential for a proper appellate
decision, a [Board member] shall remand the case to the agency of original
jurisdiction, specifying
the action to be undertaken.”); see also 38 C.F.R. § 4.2 (2014) (
instructing VA adjudicators to return
as inadequate an examination report that is not supported by sufficient
findings or does not contain
sufficient detail).
B. Extraschedular Evaluation
In “the exceptional case where the schedular evaluations are found to be
inadequate, the
Under Secretary for Benefits or the Director, Compensation Service, upon
field station submission,
is authorized to approve . . . an extra-schedular evaluation commensurate
with the average earning
capacity impairment due exclusively to the service-connected disability or
disabilities.” 38 C.F.R.
§3.321(b)(1)(2014). Referral forextraschedularconsiderationis
warrantedwhere”evidencebefore
VA presents such an exceptional disability picture that the available
schedular evaluations for that
service-connected disability are inadequate” and “the claimant’s
exceptional disability picture
exhibits other related factors,” such as marked interference with
employment or frequent periods of
hospitalization. Thun v. Peake, 22 Vet.App. 111, 115-16 (2008), aff’d sub
nom. Thun v. Shinseki,
572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet.App. 423,
427 (2009) (outlining
the “elements that must be established before an extraschedular rating can
be awarded”); 38 C.F.R.
§ 3.321(b)(1).
Because Mr. Todd died after October 10, 2008, the Court on July 23, 2014,
permitted Mrs. Todd to substitute
under the auspices of 38 U.S.C. § 5121A. See Hyatt v. Shinseki, 566 F.3d
1364, 1367 n.1 (Fed. Cir. 2009); Breedlove
v. Shinseki, 24 Vet.App. 7, 15 (2010) (per curiam order). VA has
recognized that for a survivor substituted under section
5121A, a decision as to entitlement to accrued benefits is not restricted
to consideration of the evidence contained in the
claims file at the time of the deceased VA claimant’s death. See VA Fast
Letter 10-30 (Aug. 10, 2010) (“Unlike prior
accrued benefits claims, [under section 5121A] the record is not closed on
the date of death of the original claimant[ ]
but remains open for the submission and development of any pertinent
additional evidence.”); see also Previous DocumentCopelandNext Document v.
Shinseki, 26 Vet.App. 86, 88 (2012) (“The Secretary’s proposed
interpretation of [section 5121A] is that a substitute
claimant—asopposedtoanaccrued benefitsclaimant—’could submit evidence
and generallywould have the same rights
regarding hearings, representation, and appeals as would have applied to
the claimant had the claimant not died.'”
(quoting Substitution in Case of Death of Claimant, 76 Fed. Reg. 8666,
8669 (proposed Feb. 15, 2011) (to be codified
at 38 C.F.R. § 3.10(f)(3)))). Thus, additional evidence may be developed
on remand, and Mrs. Todd is not confined to
the evidence in the file at the date of the veteran’s death.
5
11

Considerationofreferralforanextraschedularevaluationrequiresathree-fold
inquiry. Thun,
22 Vet.App. at 115. First, the Board must determine whether the schedular
evaluation adequately
contemplates the veteran’s disability picture. Id. “[I]f the criteria
reasonablydescribe the claimant’s
disability level and symptom[s], then the claimant’s disability picture is
contemplated by the rating
schedule, the assigned schedular evaluation is, therefore, adequate, and
no referral is required.” Id.
“[I]f the schedular evaluation does not contemplate the claimant’s level
of disabilityand symptom[s]
and is found inadequate,” then the second inquiry is “whether the
claimant’s exceptional disability
picture exhibits other related factors such as those provided by the
regulation as ‘governing norms.'”
Id. at 116 (quoting 38 C.F.R. § 3.321(b)(1)). If the veteran’s disability
picture meets the second
inquiry, then VA must refer the case “to the Under Secretary for Benefits
or the Director of the
Compensation Service” for the third inquiry, that is, to determine whether
an extraschedular
evaluation is warranted. Id.; see also Anderson, 22 Vet.App. at 427.
In Brambley v. Principi, the Board found that referral for extraschedular
consideration was
not warranted because “therecord [was] sufficient to concludethat the
appellant’s service-connected
disabilities do not show a marked interference with employment.” 17 Vet.
App. 20, 24 (2003)
(internal quotation marks omitted). However, the Board also found that it
was necessary to remand
the issue of entitlement to TDIU because there were “specific
inconsistencies in the record”
regarding the appellant’s employability that could only be resolved by
obtaining VA vocational
rehabilitation records, ascertaining whether the appellant was receiving
Social Security disability
benefits and obtaining any such records, and having the veteran and his
former employers explain
the reasons why he left his previous jobs. Id.
On appeal, the Court explained that, “[a]lthough it is well-settled that
extraschedular
consideration and TDIU . . . are not necessarily inextricably intertwined
, . . . here both adjudications
require a complete picture of the appellant’s service-connected
disabilities and their effect on his
employability.” Id. (internal quotation marks and citations omitted). The
Court noted the Board’s
“divergent positions concerning the completeness of the record” and
concluded that “it was
premature for the Board to decline extraschedular consideration where the
record was significantly
incomplete in a number of relevant areas probative of the issue of
employability.” Id. Thus, the
Court remanded the appellant’s low back claims for readjudication that
took into account any
12

evidence of employability developed as a result of the Board’s remand of
the issue of entitlement to
TDIU. Id. at 24-25.
In this case, the Court has determined that the issue of entitlement to
TDIU must be
remanded for the Board to address, and perhaps obtain, potentially
favorable material evidence,
includinganyVAVocational Rehabilitation andEmploymentrecords.
BecausetheBoardalsofailed
to address, and perhaps obtain, this evidence in denying referral for
extraschedular consideration,
the Court will also remand the issue of extraschedular consideration to
ensure that the Board has a
complete record upon which to decide and address all potentially favorable
material evidence
regarding any extraschedular issues associated with Mrs. Todd’s claim.6
On remand, Mrs. Todd is free to submit anyadditional evidence and argument
in accordance
with section 5121A and Kutscherousky v. West, 12 Vet.App. 369, 372-73 (
1999) (per curiam order),
and the Board must consider any such evidence or argument submitted. See
Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§§ 5109B and 7112.
III. CONCLUSION
Upon consideration of the foregoing, the December 20, 2012, Board decision
with respect
to TDIUandextraschedularconsiderationis SET ASIDE,andthematteris REMANDED,
consistent
with this decision, for additional development and readjudication for
accrued benefits purposes.
Of note, as this opinion was circulating the U.S. Court of Appeals for the
Federal Circuit issued its decision
in Johnson v. McDonald, ___ F.3d ___, ___, No. 2013-7104, 2014 WL 3844196
at *3 (Fed. Cir. Aug. 6, 2014), which
held that the “plain language of § 3.321(b)(1) provides for referral for
extra-schedular consideration based on the
collective impact of multiple disabilities.” The record of proceedings in
Mr. Todd’s appeal reflects that, while alive, in
addition to having had an 80% disability evaluation for bilateral
defective hearing that is addressed in the Board decision
on appeal, he also had a 10% disability evaluation for tinnitus effective
November 9, 2011. R. at 135. Accordingly, on
remand the Board should consider the effect of Johnson.
6
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