Citation Nr: 1009752 Decision Date: 03/15/10 Archive Date: 03/24/10 DOCKET NO. 98-13 798A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a totally disability rating based on individual employability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ann L. Kreske, Associate Counsel INTRODUCTION The Veteran served on active military duty from January 1968 to January 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a September 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which, inter alia, denied the Veteran's claim for entitlement to TDIU. This matter was previously before the Board in July 2005, March 2008, and April 2009, at which time it was remanded for further development and to address issues that are intertwined with the TDIU claim. The case has returned to the Board and again ready for appellate action. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Before addressing the merits of the Veteran's claim for entitlement to TDIU, the Board finds that additional development of the evidence is required. First, a remand is necessary to clarify the findings of the February 2008 VA examiner with regard to the Veteran's claim of entitlement to TDIU and whether any unemployability is due to his service-connected lumbar paravertebral myositis or his nonservice-connected intervertebral disc syndrome (IVDS). A review of the claims file shows that, during the examination, the Veteran reported being unemployed due to his back and psychiatric disorders. However, there was no indication whether it is the service-connected lumbar paravertebral myositis or the nonservice-connected IVDS that has caused the Veteran to be unemployable. In this regard, the Board notes that the Veteran has the following service-connected disabilities: lumbar paravertebral myositis, rated as 40 percent disabling; and schistosomiasis, rated as zero percent disabling. He also had filed a claim for entitlement to service connection for IVDS, which was denied in a September 2009 rating decision. However, the February 2008 VA examiner failed to address which back disorder causes the Veteran to be unemployable. See VA examination report dated in February 2008. In this regard, the United States Court of Appeals for Veterans Claims (Court) has found that, once VA undertakes the effort to provide an examination when developing a claim, it must provide an adequate one, or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. The Board also notes that, in April 2005, it had remanded the issue currently on appeal for an extra-schedular rating of the Veteran's service-connected disabilities. Subsequently, in April 2007, the Director of Compensation and Pension Service found that the evidence then of record did not establish that the Veteran was entitled to an extra-schedular evaluation. As explained below, the Board is again remanding the Veteran's claim for entitlement to TDIU for an extra- schedular rating. An extra-schedular rating is appropriate when the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. 38 C.F.R. § 3.321(b)(1). In this case, as previously noted, the Veteran has the following service-connected disabilities: lumbar paravertebral myositis, rated as 40 percent disabling; and schistosomiasis, rated as zero percent disabling. The combined service-connected disability rating is 40 percent. See 38 C.F.R. § 4.25 (combined ratings table). Consequently, his combined rating of 40 percent does not currently meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). If, as here, a Veteran fails to meet these § 4.16(a) percentage requirements, yet there is probative evidence indicating that he is nonetheless unable to obtain and maintain a substantially gainful occupation because of the severity of his service-connected disability, his case must be referred to the Director of Compensation and Pension Service for consideration of possibly granting a TDIU on an extra-schedular basis. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The severity of the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on this issue must be addressed. 38 C.F.R. § 4.16(b). In this regard, the Veteran's case was previously referred to the Director of Compensation and Pension in an April 2005 Board remand for reconsideration of TDIU on an extra- schedular basis. In April 2007, based on the evidence then of record, the Director determined that the record failed to show that the Veteran was not unemployed and that he was not unemployable due to a service-connected disability. In making this determination, the Director indicated that a December 1990 Disability Determination and Transmittal, SSA- 831-U3, from the Social Security Administration (SSA), held that the Veteran became disabled due to schizophreniform disorder, which is not service-connected. However, since then, additional evidence submitted demonstrates there may be a marked interference with employment due to the Veteran's back disorder. During VA orthopedic and psychiatric examinations in February 2008, the Veteran indicated that he has been unemployed since 1990 or 1991 due to his back disorder and mental disability. See VA examination reports dated in February 2008. As mentioned above, the Veteran is service-connected for lumbar paravertebral myositis. Overall, in light of the additional evidence of the Veteran's competent statements that his service-connected lumbar paravertebral myositis prevents him from obtaining and maintaining gainful employment, another extra-schedular evaluation is for consideration. Therefore, the Board is again referring this case to the Undersecretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation under both 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED for the following action: 1. Request that the previous February 2008 VA orthopedic examiner, if that physician is still available, provide an addendum to his previous opinion regarding whether the Veteran is able to obtain and maintain gainful employment, and if not, whether his unemployability is due to his service-connected lumbar paravertebral myositis or a nonservice-connected disability, including his nonservice- connected IVDS. The physician should review the Veteran's claims file, including all post-service treatment records with regard to any relationship between his service-connected lumbar paravertebral myositis and his unemployability, and a complete copy of this remand. The examiner is to provide a clarification as to the effect the Veteran's service- connected lumbar paravertebral myositis, his nonservice-connected IVDS, or another nonservice-connected disorder, has on his ability to obtain and maintain gainful employment. In doing so, the examiner should include a discussion of the symptoms that are attributable to the Veteran's service-connected lumbar paravertebral myositis, and those that are attributable to any nonservice-connected disorders. However, in the event that symptoms of a nonservice-connected disorder cannot be separated from those of a service-connected disorder, VA must presume that all impairment shown is part and parcel of the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, in this case, if the symptoms of the Veteran's nonservice-connected IVDS cannot be separated from those of his service- connected lumbar paravertebral myositis, all symptoms related to his IVDS will be attributed to his service-connected lumbar paravertebral myositis. Another VA examination is not necessary in order to provide this opinion, unless the previous VA examiner listed on the February 2008 report is unavailable, and a new examiner indicates a physical examination is necessary in order to adequately answer the question posed. The Veteran is hereby advised that failure to report for his VA examination if scheduled, without good cause, may have adverse consequences to his claim. 2. Following completion of the above development, and any additional development deemed necessary by the AOJ, the AOJ submit the TDIU claim to the Undersecretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). The provisions of 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96 (Aug. 16, 1996). In making this determination, the February 2008 VA examination reports indicating the Veteran's reports that he is unable to obtain or maintain gainful employment due to his service-connected back disability, and any addendum to the February 2008 VA orthopedic examination report, should be given particular consideration. Also be mindful that "marginal employment" is not substantially gainful. See Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991); Faust v. West, 13 Vet. App. 342 (2000); and VA Adjudication Procedure Manual M21-1, Part VI, paragraph 7.09(a)(7). The severity of the Veteran's service-connected disability, as well as his employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered. 3. If his claim is not granted to the Veteran's satisfaction, send him and his representative another supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).