Citation Nr: 1119455 Decision Date: 05/19/11 Archive Date: 05/27/11 DOCKET NO. 06-34 123A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to total disability evaluation based on individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 50 percent disability rating for posttraumatic stress disorder (PTSD) and denied entitlement to a TDIU rating. In December 2009, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (Videoconference hearing); a copy of this transcript is associated with the record. In February 2010, the Board denied a disability rating in excess of 50 percent for the Veteran's PTSD and denied entitlement to a TDIU rating. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2010 Order, the Court granted a November 2010 Joint Motion for Remand (Joint Remand) which vacated that part of the Board's decision which denied entitlement to a TDIU rating and remanded this appeal for further development consistent with its instructions. The Court noted that the Veteran did not intend to pursue his appeal regarding the disability rating assigned for his service-connected PTSD, and that the appeal of that issue was therefore abandoned. 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 In its Joint Remand, the Court noted that the Board had not obtained an adequate medical examination to determine whether the Veteran's service-connected PTSD, on its own, rendered the Veteran unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). The VA examination report that the Board relied on explained that the Veteran had been unemployed since 2006, and noted the effect of his non-service-connected physical limitations on his employability, but did not provide an opinion with regard to the effects that his service-connected PTSD, alone, had on his employability. The Court instructed the Board to ensure that VA obtained an adequate medical examination report that distinguished between the effects of the Veteran's PTSD and his other, non-service-connected disabilities with regard to his ability to obtain and maintain employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran has only one service-connected disability, PTSD, evaluated as 50 percent disabling. This disability rating fails to meet the percentage requirements of 38 C.F.R. § 4.16(a). When a Veteran does not meet the rating criteria for a TDIU rating under 38 C.F.R. § 4.16(a), they are nevertheless to be considered for a TDIU rating under 38 C.F.R. § 4.16(b). In these cases, rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). In this regard, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, which justify TDIU on an extraschedular basis. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue would be addressed if such a referral was made. 38 C.F.R. § 4.16(b). Pursuant to the Joint Remand, and in order to appropriately fulfill the duty to assist, the Veteran must be afforded a VA examination and opinion to assess whether the Veteran's service-connected disorder, PTSD, standing alone, prevents him from securing or following a substantially gainful occupation, without consideration of nonservice-connected disorders. Second, after completion of the above VA examination, the Board is referring the issue of entitlement to a TDIU rating to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 4.16(b). That is, there is some probative evidence of record that the Veteran may be unable to currently secure and follow a substantially gainful occupation due to his service-connected disabilities pursuant to 38 C.F.R. § 4.16(b). The Veteran has a high school education and three years of college and last worked in December 2005 as a laborer. The Veteran is in receipt of Social Security Administration disability benefits. The Board is not bound by the findings of disability and/or unemployability made by other Federal agencies, including the Social Security Administration. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). However, his Social Security Administration records show that he received disability payments, in part, because of his PTSD. In addition, at this March 2008 VA PTSD examination, the Veteran indicated that he had not been able to look for a job because he became stressed easily and did not like to be around people in general. In light of this evidence, referral for an extraschedular evaluation is warranted. In conclusion, after securing a VA examination that addresses the Veteran's unemployability, the Board refers the Veteran's TDIU claim to the Under Secretary for Benefits or Director of Compensation and Pension for an extraschedular evaluation under both 38 C.F.R. § 4.16(b). Accordingly, the TDIU claim on an extraschedular basis is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to the dates of any treatment received for his service-connected PTSD since December 2009, and to furnish signed authorizations for the release to the VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records (not already in the claims folder) from all sources should be requested. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, VA should inform the Veteran of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R § 3.159 (2010). 2. Schedule the Veteran for a VA psychiatric examination, to determine whether his service-connected PTSD has caused the Veteran to be unemployable. All necessary tests should be performed. The examination report should include a complete discussion of the Veteran's subjective complaints, findings on mental status examination, and a multi-axial diagnosis with Global Assessment of Functioning (GAF) score. The examiner should then answer the following: Does the Veteran's service-connected PTSD, standing alone, prevent him from securing or following a substantially gainful occupation, without consideration of his nonservice-connected disorders and advancing age. In making this determination, only the impact of the Veteran's service-connected PTSD on the Veteran's ability to secure or follow a substantially gainful occupation should be assessed, as this is the central consideration for a TDIU. The claims folder must be made available for review by the examiner and the examination report must state whether such review was accomplished. The examiner should provide a discussion of the rationale for the opinion rendered with consideration of the pertinent medical and lay evidence of record. 3. After completion of the above, submit the claim for TDIU to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), the Veteran's service-connected PTSD, 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. 4. After completion of the above, the AOJ should readjudicate the appellant's claim. If any determination remains unfavorable to the appellant, he and his attorney should be provided with a supplemental statement of the case. The Veteran should be afforded an opportunity to respond before the case is returned to the Board for further review. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination without good cause may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2010). The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ 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) (2010).