Citation Nr: 1307308 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 05-37 812 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis as a result of service-connected pes planus. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active service from September 1963 to September 1965. This case comes before the Board of Veterans Appeals (Board) on appeal from a March 2005 rating decision of the VA RO in Nashville, Tennessee. In that decision, the RO confirmed and continued a previously assigned 30 percent rating for the service-connected pes planus. The Veteran disagreed with that determination and this appeal ensued. This claim was previously remanded to the RO via the Appeals Management Center (AMC) by the Board in August 2008. In September 2010, the Board granted an increased rating to 50 percent for the service-connected pes planus. The 50 percent rating is the maximum schedular rating assignable for pes planus. In the September 2010 decision, the Board explained that because the Veteran had an increased rating claim pending at the time he reported that he was unable to continue working due to his service-connected disabilities, the issue of entitlement to TDIU was raised by the record, and is considered part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The issue of entitlement to a TDIU was remanded to AMC by the Board in September 2010 and February 2012 for additional evidentiary development. The issues of entitlement to service connection for diabetes mellitus and chronic pulmonary insufficiency were raised by the record in December 2011, but they have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). In this statement, the Veteran appears to be seeking an increased disability rating for chronic pulmonary insufficiency. However, as this issue has been previously denied, this statement should be treated as a request to reopen a previously denied claim. Therefore, the issue of entitlement to service connection for diabetes mellitus and the issue of whether new and material evidence has been submitted sufficient to reopen the claim for service connection for chronic pulmonary insufficiency have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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). For the reasons discussed below, referral to the Director of Compensation and Pension for extraschedular consideration is warranted. The issue of entitlement to TDIU on an extraschedular basis as a result of service-connected pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is competent evidence of record that the Veteran may be unemployable due to his service-connected pes planus. CONCLUSION OF LAW The criteria for referral to the Director of Compensation and Pension for consideration of an extraschedular TDIU have been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. § 4.16(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is unemployable as a result of his service-connected disabilities. In a September 2010 Board decision, the disability rating for the Veteran's service-connected pes planus was increased from 30 percent to 50 percent, and the matter of entitlement to TDIU was remanded. The RO thereafter scheduled the Veteran for a VA compensation and pension examination of the feet in December 2010. The examiner was asked to opine as to what impact the Veteran's service-connected foot disability had on his employability. In response to this request, the examiner opined that the Veteran's pes planus was not caused by, or a result of, military service. In addition to not answering the question posed by the RO, this medical opinion is of no relevance since service connection for pes planus was established long ago, effective as of 1968. The examiner did suggest that the Veteran could work in jobs that required little standing, such as an operator or a clinical support assistant. However, this assertion alone fails to explain what actual impact the Veteran's foot disability has on his overall employability. In addition, the examiner noted that the Veteran reportedly quit working in 1991 due to a spontaneous pneumothorax; and, service connection is established for a pneumothorax, rated as noncompensable. However, despite the Veteran's assertion, the examiner only considered the Veteran's service-connected pes planus when she suggested that the Veteran could perform jobs that required limited standing. Finally, when asked to provide a rationale for her opinion, the examiner simply wrote "clinical experience." This is insufficient for VA rating purposes. The United States Court of Appeals for Veterans Claims (Court) has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board determined in the February 2012 remand that the medical opinion provided in December 2010 was clearly inadequate. Instead of addressing the impact of the Veteran's service-connected foot disorder on employability, the examiner opined as to whether service connection was warranted for a disability that had long since been service-connected. It was apparent, therefore, that the examiner did not adequately review the claims file in conjunction with the examination. In addition, the requested opinion failed to ask the examiner to consider the Veteran's service-connected pneumothorax - the condition for which the Veteran said caused him to quit working in 1991. In addition, the Veteran had recently submitted a claim of service-connected for pulmonary insufficiency, and a medical examination was necessary to determine whether service-connection was warranted for pulmonary insufficiency before the matter of entitlement to a TDIU could be decided. Therefore, the Board remanded the Veteran's claim for entitlement to TDIU in February 2012 for a new examination to clarify these matters. Upon remand, the Veteran was provided a VA examination in May 2012. The examiner reviewed the claims file. The examiner determined that, secondary to flat feet, the Veteran has mild impairment to physical employment secondary to difficulty in walking from pain on prolonged standing. The examiner noted that there is no impairment for sedentary employment. The examiner also determined that, secondary to spontaneous pneumothorax in the 1960's, which is now resolved, there is no physical or sedentary impairment since his spontaneous pneumothorax, which he had in 1965 with complete reexpansion and no residuals, as per service treatment records. With regard to his flat feet, the examiner determined that the Veteran had mild impairment to physical employment but no impairment to sedentary employment. In providing this opinion, however, the examiner did not consider the Veteran's level of education and occupational experience. In other words, the examiner simply determined that the Veteran was able to work in a sedentary environment based on his physical findings, without regard to his level of education and work history. Significantly, the Veteran's representative pointed out in the November 2012 Informal Hearing Presentation (IHP), that the Veteran only had a seventh grade level of education, and his entire employment history involved manual labor. The IHP also points out that the Veteran's pes planus precludes him from maintaining his usual employment in highly physical jobs, such as his last job as a die-cutter. It was further asserted that it would not be reasonable to assume that the Veteran could pursue sedentary employment with his seventh grade education. Therefore, the representative argued that the Veteran's incapacity to maintain his usual occupation due to his bilateral pes planus and his incapacity to perform sedentary work due to his education entitles him to TDIU under 38 C.F.R. § 4.16(b). In this regard, the record reflects that any high school and college education is absent from the Veteran's DD-214 Form. An October 1974 Certificate of Eligibility shows that the Veteran was approved to take a course called Appliance Service, Refrigeration, and Air Conditioning. A July 1991 private medical record for the Consultative Examination Unit of the Disability Determination Section documented that the Veteran completed the sixth grade. In the Veteran's September 2010 application for entitlement to TDIU, the Veteran reported that he was last employed from 1987 to 1993 as a "die setter" for U.S. Stove and that sixth grade was the highest grade level he completed. The law provides that TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this regard, TDIU may be assigned 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). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this case, the Veteran's combined disability rating is 50 percent. Significantly, the service-connected pes planus is rated as 50 percent disabling, which is the maximum allowable schedular disability rating under the appropriate diagnostic code. The Veteran's other service-connected disability is left pneumothorax, which is rated as noncompensable, because the evidence shows that the pneumothorax resolved long ago and did not cause any functional or occupational impairment. Based on the foregoing, the Veteran's service-connected disabilities do not provide the requisite single or combined rating percentage to satisfy the criteria at 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that even in cases where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). In this case, the Veteran is currently assigned a 50 percent evaluation for service-connected bilateral pes planus and a 0 percent evaluation for service-connected left pneumothorax. Therefore, the Veteran's service-connected disabilities do not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2012). However, based upon the VA examination findings, the Veteran's employment history, and his level of education, it is likely that the Veteran may be unemployable as a result of his service-connected pes planus. In light of the relevant evidence of record discussed above, there is some indication in the record that the Veteran's service-connected pes planus has significantly interfered with his ability to maintain or obtain substantially gainful employment. Specifically, in consideration of the Veteran's education and employment history, and his impairment with regard to physical labor, the evidence of record suggests that he can no longer work in the only field he has ever worked. Moreover, although the May 2012 VA examiner found the Veteran able to work in a sedentary capacity, the examiner did not consider the Veteran's level of education or work history in rendering this opinion. In this regard, the Board concedes that it would be extremely difficult, if not impossible for the Veteran to find sedentary employment, when he has never previously worked in this capacity and given that he has not been satisfactorily educated to obtain or maintain such employment. Therefore, the Board is compelled to remand the claim for entitlement to TDIU on an extraschedular basis as a result of service-connected pes planus for referral to the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 4.16(b) for consideration of whether this benefit is warranted on an extra-schedular basis. Given the favorable determination as to referral for an extraschedular rating, discussion of the notice and assistance provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is unnecessary. Wensch v. Principi, 15 Vet App 362, 367-368 (2001). ORDER As the Board has identified plausible evidence in the record that the Veteran is unemployable, referral of the claim to the Director of Compensation and Pension for consideration of an award of TDIU on an extraschedular basis is granted. REMAND As explained above, although the Veteran did not meet the percentage requirements for entitlement to TDIU, there is some evidence that the Veteran is unemployable due to his service-connected pes planus. Accordingly, the Veteran's claim should be referred to VA's Director of Compensation and Pension Service for extraschedular consideration of TDIU under 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) (2012). Expedited handling is requested.) 1. Pursuant to 38 C.F.R. § 4.16(b), refer the claim for entitlement to TDIU on an extraschedular basis to VA's Director of Compensation and Pension Service for extraschedular consideration as to whether the Veteran is unemployable due to service-connected disabilities. 2. When the above is completed, readjudicate the claim. If the benefit remains denied, furnish the Veteran a supplemental statement of the case (SSOC) and return the case to the Board. The Veteran 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 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. 2012). ______________________________________________ L. B. CRYAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs