Citation Nr: 1309792 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-01 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, attorney WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 1980 to December 1988. This appeal to the Board of Veterans Appeals (Board) originally arose from a March 2006 rating action that denied reopening of service connection for a lumbar spine disability on the grounds, finding that new and material evidence to reopen the claim had not been received; denied service connection for a disability manifested by pain in the neck and upper and lower extremities; and denied a TDIU. In August 2008, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in Columbia, South Carolina (Travel Board hearing). A transcript of the hearing is of record. By decision of November 2008, the Board reopened service connection for a lumbar spine disability on the basis of new and material evidence. The Board also remanded the matters of service connection on the merits, as well as service connection for a disability manifested by pain in the neck and upper and lower extremities, and a TDIU to the RO for further development of the evidence and for due process development, to include obtaining private chiropractic and follow-up VA treatment records, and affording the Veteran a VA examination. By rating action of June 2011, the RO granted service connection for cervical spine degenerative disc disease with stenosis and assigned a 10 percent rating from November 2005; granted service connection for lumbar spine degenerative disc disease with stenosis and assigned a 10 percent rating from November 2005; granted service connection for right and left upper extremity radiculopathy and assigned each a noncompensable (0 percent) rating from November 2005; and granted service connection for right and left lower extremity radiculopathy and assigned each a noncompensable rating from November 2005. This represents a substantial grant of the benefits sought on appeal with respect to the claims for service connection for a lumbar spine disability and a disability manifested by pain in the neck and upper and lower extremities. In a January 2012 decision, the Board denied the appeal for a TDIU. This denial was subsequently appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2012 order, the Court granted a Joint Motion for Remand (Joint Motion) which had the effect of vacating the Board's January 2012 denial and returning this issue of a TDIU to the Board for further consideration. The appeal is REMANDED to the RO. REMAND TDIU The Veteran contends that he cannot retain (maintain) substantially gainful employment due to his service-connected disabilities. In his written statements to VA, the Veteran stated that he last worked as a barber, but had to quit that job due to his limited ability to stand for prolonged periods due to his knee, neck, and low back pain. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012); VAOPGCPREC 75-91. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Where a veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. In the present case, the Veteran has been granted service connection for residuals of a right knee arthroscopy with anterior and lateral compartment narrowing and osteophyte formation, evaluated as 10 percent disabling; left knee lateral and anterior compartment narrowing and osteophyte formation, evaluated as 10 percent disabling; cervical spine degenerative disc disease with stenosis, evaluated as 10 percent disabling; lumbar spine degenerative disc disease with stenosis, evaluated as 10 percent disabling; right and left upper extremity radiculopathy, each assigned a noncompensable evaluation; right and left lower extremity radiculopathy, each assigned a noncompensable evaluation; and left little finger avulsion residuals, assigned a noncompensable evaluation. The combined disability rating is 40 percent. Thus, the Veteran does not have at least one disability rated at 40 percent disabling, and the combined disability rating is less than 70 percent. Regardless, the Board must also consider entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b). Pursuant to his claim, the Veteran was afforded a VA medical examination in September 2010. According to the Joint Motion, this examination was inadequate, as it failed to adequately address the occupational impact of the Veteran's service-connected disabilities upon his daily life. Once 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). Therefore, according to the Joint Motion, remand is required to obtain an opinion regarding whether the totality of the Veteran's service-connected disabilities render him unemployable. Accordingly, the issue of TDIU is REMANDED for the following action: 1. Forward the Veteran's claims file to a vocational rehabilitation or similar specialist for an opinion regarding the Veteran's employability. The Veteran need not be scheduled for an in-person examination unless such an examination is deemed necessary by the reviewing examiner. The examiner(s) should provide an opinion as to the effect of the Veteran's service-connected bilateral knee disabilities, degenerative disc disease of the cervical and lumbosacral spines, bilateral radiculopathy of the upper extremities, bilateral radiculopathy of the lower extremities, and residuals of a left little finger avulsion, both individually and considered together, on the ability to secure (obtain) and follow (maintain) substantially gainful employment. The examiner(s) should also review the relevant evidence in the claims folder, to include any prior VA medical examinations, in the course of rendering any opinion. Thereafter, the examiner should offer the following opinions: 1. Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities render him unable to secure (obtain) substantially gainful employment? 2. Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities render him unable to follow (maintain) substantially gainful employment? If the opinion and/or supporting rationale cannot be provided without speculation or conjecture, the reviewer should so specify in the report, and explain why any opinion could not be offered. In this regard, if the reviewer concludes that there is insufficient information to provide an opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion is due to a need for further information (with such needed information identified) or because the limits of pertinent medical knowledge have been exhausted regarding the effects of the Veteran's service-connected disabilities on his employability. 2. After undertaking any additional development deemed appropriate, adjudicate the claim for a TDIU in light of any additional evidence added to the record. If the Veteran is found to be unemployable pursuant to his service-connected disabilities, but continues to fail to meet the percentage requirements established at 38 C.F.R. § 4.16(a), his claim should be submitted to the Director, Compensation and Pension Service, pursuant to 38 C.F.R. § 4.16(b) for extraschedular consideration. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ J. Parker 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).