Citation Nr: 1310019 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 12-33 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to a total rating due to individual unemployability (TDIU) caused by the Veteran's service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from June 1944 to November 1945. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota (RO). In February 2013, the Veteran appeared at the RO and testified at a hearing before the undersigned. A transcript of the hearing has been associated with the record. 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 Board finds that additional development of the record is warranted prior to further consideration by the Board. Accordingly, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A total rating may be granted even though the Veteran's schedular rating for his service-connected disabilities is less than 100 percent. In order to establish entitlement to a TDIU, the Veteran's service-connected disabilities must meet certain qualifying percentage ratings. When the Veteran has two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, the Veteran clearly meets those percentages. When the Veteran filed his claim for a TDIU in January 2012, a 70 percent combined disability rating was in effect for: osteoarthritis, right knee, evaluated as 40 percent disabling; osteoarthritis, left knee, evaluated as 10 percent disabling; degenerative joint disease, left hip associated with osteoarthritis, right knee, evaluated as 10 percent disabling; degenerative joint disease, right hip associated with osteoarthritis, right knee, evaluated as 10 percent disabling. In addition to meeting the percentage requirements of 38 C.F.R. § 4.16(a) (2012), the evidence must show that the Veteran's service-connected disabilities are sufficient, by themselves, to prevent the Veteran from performing the mental and/or physical tasks required to get or keep substantially gainful employment. Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. VA adjudication manual, M-21-1MR, Part IV, sub. ii, Ch. 2, Sec. F, 24(d). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a) (2012); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). The Veteran submitted a form dated in December 2011 prior to his compensation examination. He noted that he was a self employed machinist. He listed no monthly wages, employment dates or time lost from work in the past 12 months. The record reveals that the Veteran reported retiring in 2002. The records also reveal the Veteran was the owner of PR&D, Incorporated, a farm machinery company in Perham, Minnesota. The evidence of record does not reveal that the Veteran has sold this business or if in fact he still owns it and has employees doing the machining work he previously did. In the March 2012 VA medical examination the claims file and medical records were reviewed. The examiner noted that the service connected conditions were limited to the knees and hips. The examiner noted the Veteran recently suffered a left femoral neck fracture in a fall in January 2012. He underwent an open reduction and internal fixation (ORIF). The examiner noted that he could not state with certainty if the fall was a direct result of the service connected conditions. Based on the reports of minima DJD of the hips and knees, his falls are likely multifactorial and not directly related to service connected conditions. The Veteran reported hip and knee pain so that any physical labor would likely be difficult when considering service connected conditions only. The examiner however opined that based on the examination and X-ray reports (excluding age and other conditions) sedentary labor would be possible when considering the service connected hip and knee condition only. At the February 2013 videoconference hearing, the Veteran testified to being a machinist since service, but that he was no longer able to do this work due to his hip and knee disorders. When asked whether he could do sedentary work as suggested by the VA examiner, he did not state that he could not. Instead he stated that "I would have to find some way to get there." He further noted that the town he lived in was, "not that big a town and there's not that many jobs available I don't think." The representative asked the Veteran's spouse if she thought the Veteran would be capable of doing any type of gainful employment. She replied that she did not think he would be able to do any gainfully employed job. She added that she was an R.N. The foregoing evidence suggests that the Veteran is not unemployable due to his service-connected conditions. However, such findings do not address the question as to whether the Veteran is precluded from obtaining/retaining all forms of substantially gainful employment due to the level of impairment caused by a combination of those disorders. Additionally, the Board notes it is somewhat unclear from the record whether the Veteran is actually still gainfully employed, including as his being the proprietor of his farm equipment company. Therefore, additional development of the record is warranted prior to further consideration by the Board. Accordingly, the appeal is REMANDED for the following actions. 1. Request that the Veteran provide a statement as to whether he was still the owner proprietor of PR&D, Incorporated in Perham, Minnesota. If he indicates that he is no longer the owner proprietor, he should be advised to submit evidence documenting his separation from ownership. If he indicates that he is still the owner proprietor but nevertheless has hired others to do his machining work, he should be advised to submit evidence to that effect. 2. If the Veteran no longer owns PR&D, Incorporated in Perham, Minnesota, he should provide a statement as to whether he is still employed. He should identify the name and address of his last employer, and provide the dates of that employment. 3. If and only if, the Veteran is determined to no longer be the owner proprietor of PR&D, Incorporated in Perham, Minnesota; or is determined to no longer be employed; schedule the Veteran for a comprehensive examination to determine the level of impairment due to a combination of his service-connected hip and knee disabilities. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. In performing the examination, the examiner must identify and explain the elements associated with the Veteran's service-connected hip and knee disabilities. The examiner must also render an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that the Veteran's service-connected disorders, alone or in combination, preclude him from securing or following substantially gainful employment. In rendering his or her opinion, the VA examiner must consider the testimony provided by the Veteran's spouse who is a registered nurse, and provide a clear rationale for the opinion. 4. When the actions above have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). _________________________________________________ Thomas H. O'Shay Acting 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 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).