Citation Nr: 1237183 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 11-13 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011). A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, service connection is in effect for bilateral hearing loss (evaluated as 40 percent disabling prior to February 2, 2010 and 50 percent disabling thereafter); degenerative joint and disc disease and remote strain, lumbar spine (evaluated as 20 percent disabling); and residuals of inguinal hernia, intestinal hernia with subsequent right orchiectomy (evaluated as 0 percent disabling). During the course of this appeal, the Veteran's combined disability rating was 50 percent prior to February 2, 2010 and 60 percent thereafter. At this time, the Veteran does not meet the disability percentage standards for a TDIU under 38 C.F.R. § 4.16(a). However, 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. 38 C.F.R. § 4.16(b). Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth above. Id. In this case, the evidence of record indicates that the Veteran is a high school graduate. He has previous work experience in farming and ranching. He last worked full time in 1984 doing pest control, an occupation he had worked in for a number of years. During the Veteran's April 2012 hearing, he testified that doing pest control he was required to crawl under houses to treat them for termites. Board Hearing Tr. at 4. After a VA general medical examination in March 2010, a VA physician's assistant diagnosed (1) injury to right testicle, status post removal, and (2) moderate to severe degenerative joint disease, lumbar spine. The physician's assistant noted that the lumbar spine disability would have effects on occupational activities due to decreased mobility, problems with lifting and carrying, and pain. She stated that the Veteran could not do strenuous activity and opined that he could not function in an occupational environment based on his lumbar spine condition. The Veteran was also afforded a VA audiological examination. The audiologist opined that it can be expected that the Veteran's hearing loss may result in some difficulty understanding speech in difficult listening situations, like in the presence of background noise, when the Veteran cannot see speakers' faces, or over the phone. However, she noted that with amplification and reasonable accommodations the hearing loss should not significantly affect vocational potential or limit participation in most work activities. The evidence in this case, particularly the March 2010 opinion that the Veteran's service-connected lumbar spine disability precludes functioning in an occupational environment, suggests that the Veteran is unemployable by reason of service-connected disabilities. As he does not meet the disability percentage standards for a TDIU under 38 C.F.R. § 4.16(a), this claim must be remanded so that the AOJ can submit this case to the Director, Compensation and Pension Service, for extra-schedular consideration. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Submit this case to the Director, Compensation and Pension Service, for consideration of a TDIU on an extra-schedular basis. 2. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity 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 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. 2011). _________________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2011).