Citation Nr: 1037293 Decision Date: 09/30/10 Archive Date: 10/05/10 DOCKET NO. 10-01 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active service from August 1948 to May 1952. This appeal to the Board of Veterans' Appeals (Board) is from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio (Tiger Team), which denied entitlement to a TDIU. The RO in New Orleans, Louisiana, has since assumed jurisdiction, and that office forwarded the appeal to the Board. In April 2010 the Board remanded the matter for additional development. That development having been completed, the claim has been returned to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the claim can be properly adjudicated. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2009). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2009). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2009); Van Hoose v. Brown, 4 Vet. App. 361 (1993). If a Veteran does not meet these threshold minimum percentage standards set forth in 38 C.F.R. § 4.16(a), he still may be entitled to a TDIU on an extra-schedular basis, provided he is unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. 38 C.F.R. § 4.16(b) (2009). See also 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must assess whether there are circumstances in the Veteran's case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Van Hoose, 4 Vet. App. at 361; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). In this case, the Veteran is service-connected for posttraumatic stress disorder (PTSD) (rated as 30 percent disabling); residuals of a cold injury to the right foot (30 percent); residuals of a cold injury to the left foot (30 percent); a shell fragment wound scar to the upper right arm, healed, moderate muscle injury Group V (10 percent); tinnitus (10 percent); healed gunshot would scar on the 2nd toe of the left foot (0 percent); shell fragment wound to the left knee and leg with no residuals (0 percent); post operative hernioplasty scar on the right (0 percent); shell fragment wound scar on the dorsal surface of the left hand (0 percent); and, bilateral hearing loss (0 percent). His total combined disability rating is 80 percent. He does not have at least one disability must be rated at 40 percent or more. As such, he does not have a sufficient rating to satisfy the threshold minimum requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU. But, as mentioned, he can still show his entitlement to this benefit by establishing his unemployability under the special provisions of § 4.16(b). See also 38 C.F.R. § 3.321(b)(1) (2009); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this regard, the Board is precluded from assigning an extra- schedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd, 9 Vet. App. at 96. Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). See also Shipwash, 8 Vet. App. at 227. The RO, in its December 2008 rating decision, declined to refer this case to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of a TDIU on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16(b), keeping in mind the Veteran does not satisfy the threshold minimum rating requirements of § 4.16(a) for this benefit without resorting to this special extra-schedular consideration. Because, however, there is medical and lay evidence of record at least suggesting the Veteran's service-connected disabilities preclude him from working in all forms of substantially gainful employment, the Board fidns that his case must be referred to this authority for this special consideration under § 4.16(b). Specifically, the November 2008 VA examiner, following a physical examination of the Veteran and a review of the Veteran's medical records, determined that the Veteran "is limited from employment that requires long periods of standing, extensive walking, and exposure to cold temperatures secondary to his service-connected cold injury of the feet. He is also limited by his service- connected hearing problem from employment in which he would be in an environment that had extensive background noise as he is unable to hear directions/have conversations in such condition." Further, the June 2010 VA examining podiatrist, following a physical examination of the Veteran and a review of the Veteran's claims file, determined that the Veteran cannot stand for prolonged periods of time due to his service-connected cold injury of the feet and therefore he would not be able to work as draftsman, which was his occupation. Therefore, these records suggest that various symptoms associated with his service-connected disabilities cause significant, if not total, impairment in his occupational functioning. The Board, therefore, is compelled to remand this TDIU claim for immediate referral to the Director of the Compensation and Pension Service or other designate in accordance with 38 C.F.R. § 4.16(b) for consideration of whether this benefit is warranted on an extra-schedular basis. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Refer this TDIU claim to the Director of Compensation and Pension Service, pursuant to the provisions of 38 C.F.R. § 4.16(b), for consideration of whether this benefit is warranted on an extra-schedular basis. This referral is mandatory, although the decision of whether to actually award an extra- schedular rating remains to be decided by the Director of C&P Service or designate. 2. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. The Veteran 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 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). _________________________________________________ MICHAEL MARTIN Acting 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).