Citation Nr: 1309294 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 04-20 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from January 1973 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In February 2007, July 2010, and June 2011 the Board remanded the case to the RO, via the Appeals Management Center (AMC), for further development and adjudicative action. Following completion of the development and adjudicative actions, the case was returned to the Board for further appellate review. Notably, in the July 2010 Board decision/remand, the Board noted that throughout the Veteran's VA treatment records, he had consistently argued that he was unable to maintain employment due to his chronic low back strain. See VA Treatment Records, generally. In Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) the Court stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board has jurisdiction to consider that issue. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. Thus, the Board took jurisdiction of the TDIU issue as part of the Veteran's claims for higher disability ratings. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 The Veteran is seeking entitlement to a TDIU. Specifically, the Veteran argues that he stopped working in 1995 due to his service-connected low back disorder and is, thus, entitled to a TDIU. A review of the claims file shows that the Veteran worked as a truck driver until 1995 and then engaged in sporadic employment, generally as a truck driver, until at least 2007. He has been in receipt of Social Security disability benefits for his low back disorder, chronic obstructive pulmonary disorder, and an anxiety disorder since April 2009. A TDIU may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran's service-connected disabilities presently include low back strain (20 percent disabling); tinnitus (10 percent disabling); left lower extremity neurological manifestations associated with low back strain (10 percent disabling); and healed left tympanic membrane perforation with residual scar and hearing loss (0 percent disabling). A combined disability evaluation of 40 percent is in effect. Therefore, he does not meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). While the Veteran does not meet the schedular criteria for a TDIU, there is evidence that calls into question the Veteran's ability to secure or follow substantially gainful employment due to his service-connected low back disorder. Significantly, pursuant to the June 2011 Board remand the Veteran was afforded a VA general examination in September 2011. With regard to the Veteran's low back disorder the examiner wrote that the Veteran would be unable to work as a truck driver with chronic low back pain that is worse with sitting for long periods of time or increased activity. It was noted that the Veteran had no other skills and was considered unemployable and in receipt of Social Security disability benefits. In a January 2012 addendum the examiner wrote that the Veteran would be unable to perform a physical job because of activity increasing his low back symptoms, as well as repetitive activities and heavy lifting. The Veteran would also be unable to perform a sedentary job because of increased symptoms after sitting for more than 30 minutes, requiring frequent change of position. 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. 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 in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). With respect to assignment of a TDIU under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the Veteran's claim should be submitted to the Director of Compensation and Pension for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis. The Board finds the determination by the Social Security Administration and the medical opinions discussed above as plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected low back disorder. Accordingly, the Board finds that the claim should be submitted to the Director of Compensation and Pension for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer this case to the Under Secretary for Benefits of the Director, Compensation and Pension Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). 2. After the development requested above has been completed, readjudicate the appellant's claim. If the benefit sought continues to be denied, issue a supplemental statement of the case (SSOC) and allow an appropriate period of time to respond. Thereafter, if appropriate, the case should be returned to the Board. 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). 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). _________________________________________________ K. OSBORNE 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).