Citation Nr: 1308412 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-09 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 7, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb 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 served on active duty from January 1951 to December 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This case was remanded by the Board of Veterans' Appeals (Board) in September 2012 to the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO) for additional development. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although a July 2010 rating decision granted service connection for an adjustment disorder with depressed mood and for headaches, each of which was assigned a 10 percent rating effective May 7, 2010, this information was not on file when the Board denied a claim for TDIU in September 2010. Based on a February 2011 Joint Motion for Partial Remand, a March 2011 Order from the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the Board's September 2010 denial of TDIU back to the Board because the denial did not account for all of the Veteran's service-connected disabilities "taken together" and because the analysis did not sufficiently relate the Veteran's educational and employment history to his service-connected disabilities in concluding that some form of employment was available. The Board then remanded the case to the RO in June 2011 for additional development. A May 2012 rating decision granted TDIU benefits effective May 7, 2010. The case was again remanded by the Board in September 2012 for an addendum from the examiner who conducted a general medical examination of the Veteran in July 2011 on whether the Veteran's service-connected disabilities caused unemployability prior to May 7, 2010, in light of his occupational and educational history. A VA addendum was obtained in October 2012. TDIU ratings 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 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 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a) (2012). The Veteran's claim for an increased rating was received on June 26, 2009. As such, the rating period for consideration on appeal is from June 25, 2008. From June 25, 2008 until May 6, 2010, the Veteran was only service connected for bilateral hearing loss (rated 40 percent disabling); for left eye vision loss (rated 20 percent prior to June 26, 2009 and 30 percent disabling thereafter); and for tinnitus (rated 10 percent disabling). Therefore, prior to May 7, 2010, the Veteran did not meet the schedular criteria for a total disability rating based on individual unemployability pursuant to 38 C.F.R. § 4.16(a). Because the Veteran's combined rating in this case fails to meet the schedular percentage standards of section 4.16(a) prior to May 7, 2010, his claim for a total rating prior to May 7, 2010 can be considered only on an extraschedular basis under section 4.16(b) (2012). Although the Board may not assign an extraschedular rating in the first instance, because the authority for doing so is vested in a particular VA official, the Director of the Compensation and Pension Service, the Board may consider whether remand to the RO for referral to the proper official is warranted. See 38 C.F.R. § 4.16(b); Bagwell v. Brown, 9 Vet. App. 337 (1996) (holding that the Board is precluded from assigning an extra-schedular rating in the first instance, but the Board is not precluded from considering whether referral to the VA officials is warranted); see also VAOPGCPREC 6-96 (Aug. 16, 1996). The issue of entitlement to TDIU prior to May 7, 2010 based on the provisions of 38 C.F.R. § 4.16(b) has been reasonably raised by the record but has not been considered by the appropriate VA official. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It was concluded by a VA health care provider in an October 2012 opinion that, even though the Veteran's service-connected hearing loss or left eye vision loss would not cause unemployability by itself, the combination of the disabilities would preclude virtually all forms of employment, such that he would be precluded from being able to follow or maintain substantially gainful employment prior to May 7, 2010. Therefore, the case is remanded to the RO for referral to the Chief Benefits Director of VA's Compensation and Pension Service, 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.) Refer the Veteran's claim for a TDIU to the Chief Benefits Director of VA's Compensation and Pension Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b), to include with consideration of the opinion of the VA health care provider in October 2012. If the determination remains adverse to the Veteran, the Veteran and his representative will be provided a Supplemental Statement of the Case, which includes a summary of all pertinent evidence and legal authority, as well as the reasons for the decision. The Veteran and his representative will be afforded a reasonable period in which to respond, and the record will then be returned to the Board for further appellate review, as appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). _________________________________________________ U. R. POWELL 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 Court. 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).