Citation Nr: 1305280 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 12-28 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from March 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) in St. Louis, Missouri. 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 June 2010, the RO received the Veteran's claim for a TDIU. A TDIU may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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 C.F.R. §§ 3.340, 4.16(a) (2012). Service connection is currently in effect posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling; deafness, sensorineural type, bilateral, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; and residuals of a fractured nose, evaluated as noncompensable. The Veteran's combined disability evaluation is 60 percent from January 26, 2010. Thus, he does not meet the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) (2012). Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may be awarded on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b) (2012). In December 2010, a VA examiner opined that the Veteran was unemployable due to non-service-connected agnogenic myeloid metaplasia In a November 20, 2012 signed statement, J.P.R., M.D., an oncologist, reported that he treated the Veteran for agnogenic myeloid metaplasia. Dr. J.P.R. opined that the Veteran was severely disabled from his terminal illness. But, in a March 9, 2011 signed statement, the Veteran's treating VA primary care psychologist since 2007 opined that, given the Veteran's symptomatology, he was unable to work without further impairment to his psychological functioning. The VA psychologist indicated that, even mild to moderately demanding work would likely tax him in terms of both mental and physical fatigue and compromise his ability to manage his symptoms, specifically, those of PTSD. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the veteran "was ineligible for 4.16(b)-TDIU consideration." ld. In this case, the RO did not submit the Veteran's TDIU claim to the Director of Compensation and Pension for extraschedular consideration. As such, this matter must be remanded so that the RO/AMC can do so. 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) (2012). Expedited handling is requested.) 1. The RO/AMC should refer the Veteran's TDIU claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extra-schedular evaluation under 38 C.F.R. § 4.16(b). 2. After the above has been completed, readjudicate the issue on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If the issue on appeal continues to be denied, the Veteran and his representative must be provided a supplemental statement of the case. The Veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review 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. 2012). _________________________________________________ ERIC S. LEBOFF 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) (2012).