Citation Nr: 1145167 Decision Date: 12/09/11 Archive Date: 12/14/11 DOCKET NO. 02-09 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to August 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2004 and February 2007, the Board remanded the claim for entitlement to TDIU for additional development. The claim returned to the Board in August 2008 where it was denied. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In October 2009, the Court granted a Joint Motion for Remand (JMR) filed by the parties and vacated the August 2008 Board decision. The claim for TDIU was returned to the Board and in March 2010 it was remanded for the procurement of a medical opinion. The case has now returned to the Board for further appellate action. In a February 2010 statement, the Veteran filed a claim for entitlement to service connection for a left shoulder disability. Similarly, in July 2011, he noted that his service-connected polyarthritis had increased in severity. The issues of entitlement to service connection for a left shoulder disability and an increased rating for polyarthritis have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action, to include contacting the Veteran to determine whether he wishes to pursue his claims in light of the grant of TDIU discussed below. FINDINGS OF FACT 1. The Veteran's only service-connected disability is polyarthritis, probable early rheumatoid arthritis, currently rated as 20 percent disabling. 2. The Veteran is unable to follow a substantially gainful occupation due to his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extra-schedular basis are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.16(b) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that TDIU is warranted in this case as he is unemployable due to his service-connected polyarthritis. TDIU may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). If these percentage requirements are not met, but the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record establishes that the Veteran was employed by Consolidated Rail Corporation (CONRAIL) from 1975 to March 2000 as a trackman. A private clinical record dated in March 1999 pertaining to treatment for carpal tunnel syndrome indicates that the Veteran's work duties included the use of air hammers, impaction tools, and sledge hammers. The Veteran's VA Form 21-8940 also notes that he completed only three years of high school and had no college education. The Veteran's only service-connected disability is characterized as polyarthritis, probable early rheumatoid arthritis, which is currently rated as 20 percent disabling. Therefore, he does not meet the minimum schedular criteria for a total rating based on unemployability as required by 38 C.F.R. § 4.16(a). Although the Veteran does not meet the percentage requirements for a grant of TDIU, the Board must consider whether he meets the extra-schedular criteria under 38 C.F.R. § 4.16(b). In March 2011, the Veteran's claim for TDIU was referred to the Director of Compensation and Pension Service (Director) for extra-schedular consideration. Such referral is required before the Board can grant TDIU under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). An administrative review of the Veteran's claim was conducted in May 2011, and the Director found that the evidence did not establish entitlement to a total disability evaluation on an extra-schedular basis. The Director determined that the record established the Veteran's previous employment was terminated due to nonservice-connected disabilities. The record contains several medical opinions in support of the claim for TDIU. In March 2007, a VA physician's assistant who reviewed the claims file and the report of a July 2004 VA examination concluded that the Veteran's service-connected joint pain did not afford many opportunities for employment. Although the Veteran's service-connected disability was currently characterized as polyarthritis and probable early rheumatoid arthritis, the July 2004 VA examination indicated that his disability was most likely fibromuscular in origin and resulted in significant polyarthritis aches and pains. During the most recent VA examination in April 2010, the examining VA physician explicitly found that the Veteran was less likely as not able to secure or follow gainful occupation in light of his service-connected disabilities and the resulting functional limitations. While the Veteran has other disabilities that are not service-connected and affect his functioning, including diabetes mellitus, hepatitis C, and a respiratory disorder, the Board finds that the medical evidence of record establishes that the Veteran's service-connected polyarthritis has rendered him unemployable. In reaching this conclusion, the Board has considered the Veteran's educational and industrial background which is limited to an eleventh grade education and past work experience performing physical labor for a railroad company. Therefore, the Board finds that the Veteran is unable to follow a substantially gainful occupation due to his service-connected disability and should be rated as totally disabled. The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. ORDER Entitlement to TDIU is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs