Citation Nr: 1310977 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 04-07 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty for training from May to July 1957 and had active service from June 1961 to August 1965. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2009, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript is associated with the claims file. In July 2009, August 2010, and April 2012 the Board remanded this claim for additional development. 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 April 2012 remand explained that the Veteran's combined disabilities were at 30 percent disabling at the time and, as a result, he did not meet the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU. He did not have a single service-connected disability ratable at 60 percent or more and he did not have a combined rating for his service-connected disabilities of 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). However, 38 C.F.R. § 4.16(b) was for consideration. The Veteran was to be scheduled for appropriate VA medical examinations to determine the current levels of severity of his service-connected disabilities, which at that time were: a laceration scar of the left index finger; calluses of the right and left foot; a scar on the right shin; and ingrown toenails. On remand, the Veteran was given several VA examinations and the examiner opined in May 2012 that the Veteran's disabilities combined would render him unable to secure employment. The examiner stated the Veteran only finished high school with no special training. His only previous work experience was working in a restaurant as a waiter before enlistment and during military service. As a result, his calluses and ingrown toenails would affect his job as a waiter because being on his feet and wearing shoes was painful. Both disabilities had a moderate affect on both physical and sedentary jobs. His right shin and left index finger scar were painful; both would have a mild affect on both physical and sedentary jobs. The Board finds the Veteran did not finish high school at all; most records show he only had a ninth grade education (See May 1957 report of medical history, July 1988 original VA claim, and August 2001 TDIU application.) Also, his prior experience was as a cook or chef, not as a waiter. (See August 2001 TDIU application and 1990 worker's compensation lawsuit documents.) Further, in a September 2012 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus and rated each as 10 percent disabling. (The ratings for the bilateral calluses were continued at 10 percent each as well.) The bilateral hearing loss and tinnitus were not considered in the May 2012 VA opinion. Regardless, the Veteran reported to the January 2012 VA audiology examiner that the functional impact from his bilateral hearing loss was communication problems with his family and difficulty on the phone. The Veteran is now service-connected for: a laceration scar of the left index finger (10 percent); calluses of the right and left foot (10 percent each); a scar on the right shin (noncompensable); ingrown toenails (noncompensable); bilateral hearing loss (10 percent) and tinnitus (10 percent). His combined total is 40 percent from December 23, 2010. In a January 2013 memorandum, the AMC considered the claim under 38 C.F.R. § 4.16(b), but incorrectly stated the combined evaluation was at 30 percent; the AMC did not acknowledge the ratings in place at that time for bilateral hearing loss (10 percent) and tinnitus (10 percent) which brought the combined evaluation to 40 percent disabling. (While this memorandum is signed by the "Chief of 211B staff, Compensation Service" this is not the Director of Compensation and Pension Service.) Even with this slight increase, the Veteran is still not entitled to a TDIU under 38 C.F.R. § 4.16(a). However, the Board finds that under the circumstances, the claim should be submitted to the Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). In any case, the Board cannot award a TDIU in the first instance-the RO must submit the claim to the Director of Compensation for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). On remand, the case should be submitted to the Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). The AMC should take care to provide an accurate statement of Veteran's disabilities and of his work history. Regarding work history, the Board finds that at enlistment in May 1957, a report of medical history showed his usual occupation was meat cutter. His DD 214 from 1957 shows his highest civilian education obtained was nine years. A January 1965 mental hygiene consultation noted he quit school at age sixteen to support himself. In January 1958 and May 1961, a reports of medical history noted he had difficulty with studies at school. A June 1965 report of medical history showed his usual occupation was that of a cook. In June 1988, the Veteran stated on an insurance form that he was unable to work because of his leg veins. He reported working nineteen years as a chef with one year in hotel management training. Social Security Administration (SSA) records from April 1990 show the Veteran was disabled due to a severe chronic venous insufficiency. The SSA decision shows in March 1988, the Veteran was hospitalized for acute/chronic venous stasis cellulitis with superficial venous thrombus. In June, Dr. T. found the Veteran was disabled from his current job as a cook due to his prior diagnosis. He could do a stationary job. Dr. R., another treating doctor, stated at a hearing that the Veteran's condition would preclude any job that required standing. If he had a job, he would have to follow guidelines elevating his feet. SSA determined based on the evidence, the Veteran could not even do light work due to his disability. With the exception of on June 1996 private provider record which noted the Veteran had a shoulder problem but "continues to work around his ranch" the evidence shows the Veteran has been unemployed since 1988. In his August 2001 TDIU application, the Veteran initially claimed foot spurs on both feet kept him from working, however at the May 2009 Board hearing he asserted it was his service-connected calluses that kept him from working. (Transcript, p 7.) A May 2004 private social work note shows the Veteran was unable to work due to all disabilities (including nonservice-connected disabilities). A June 2007 VA pulmonary medical record shows the Veteran's reported medical and job history; when he got out of the Army, he worked construction, in a warehouse, at a shoe factory and then as a cook. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for entitlement to a TDIU to the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). The Director must review the evidence of record to determine whether an extraschedular rating is warranted. The claims folder, to include the May 2012 VA opinion and the above work history summary, should be reviewed. Associate the response with file. 2. Readjudicate the claim on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time for response. 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 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). _________________________________________________ M. G. MAZZUCCHELLI 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).