Citation Nr: 1032016 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 06-35 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active service from September 1974 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this matter in August 2009. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A total disability evaluation may be assigned where the schedular evaluation is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2009). The central inquiry is "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2007); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Service connection is in effect for asthma, rated as 30 percent disabling, low back injury, rated as 20 percent disabling, left shoulder injury, rated as 20 percent disabling and residuals of right knee injury, rated as 10 percent disabling. The combined evaluation for the Veteran's service-connected disabilities is 60 percent. Thus, the schedular criteria for TDIU are not met. When a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned on a different basis. 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. Therefore, at the RO level, rating boards are to submit to the Director, Compensation and Pension service, for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board is to include in its submission a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and factors having a bearing on the issue. 38 C.F.R. § 4.16(b) (2009). The rating board is to include in its submission a full statement as to the veteran's service- connected disabilities, employment history, educational and vocational attainment and factors having a bearing on the issue. 38 C.F.R. §§ 3.321, 4.16(b) (2009). A May 2006 VA examination noted an impression of primary unemployability due to multiple orthopedic complaints, including low back pain, a left shoulder injury and a right knee injury, and the Veteran's asthma, which limited his walking when he worked in construction and on air condition and heating units. The examiner opined that the Veteran would be employable at a desk job. In December 2009, a VA physician opined that the Veteran is unable to do any heavy manual labor. The examiner stated that the Veteran has the ability to do sendentary work that does not involve repetitive heavy lifting, bending, stooping, climbing, crawling or kneeling. The examiner noted that the availability of this work is unknown, as is the Veteran's level of training for such work. The May 2006 and December 2009 VA examinations suggest that there is medical evidence of unemployability due to service-connected disabilities. However, because the Veteran does not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a), a total rating based on unemployability could not be assigned prior to referral to the Director of Compensation and Pension for consideration of whether an extraschedular evaluation would be warranted under 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In addition, the Board notes that the prior remand directed the RO to obtain any pertinent documents regarding Workers' Compensation and Social Security benefits. A September 2009 letter to the Veteran requested that he provide any information regarding Social Security and Workers' Compensation benefits. The Veteran did not respond. Given the importance of such records in determining the Veteran's employability, the AMC/ RO should contact the Veteran once again to request information regarding SSA and Workers' Compensation records. The AMC/ RO should secure the Veteran's authorization for any outstanding records and should obtain such documents and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he clarify whether he has been in receipt of Social Security and workers' compensation benefits. The Veteran should be requested to submit authorization for those records. 2. Thereafter, the RO should review any information obtained. If there remains insufficient evidence to award the Veteran TDIU, then consideration shall be given to affording a social and industrial survey for the purpose of ascertaining the cumulative impact of the Veteran's service-connected disabilities on his unemployability. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities (to include, but not limited to, his asthma and low back, left shoulder, and right knee disabilities) jointly on the Veteran's employability. The examiner should opine as to whether the Veteran's service- connected disabilities, without consideration of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. 3. Thereafter, the RO should submit the Veteran's claim to VA's Director of Compensation and Pension for consideration of entitlement to a TDIU under 38 C.F.R. § 4.16(b). 4. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and should have an applicable opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). _________________________________________________ V. L. Jordan 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).