Citation Nr: 1313016 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-19 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. During the pendency of the appeal, the Veteran moved from California to Hawaii. Thus, the RO in Honolulu, Hawaii, currently has jurisdiction over the Veteran's claim. In December 2011, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. In July 2012, the Board remanded the claim on appeal in order for evidentiary development to be conducted. All requested development has been completed and the claim has been returned to the Board for adjudication. Unfortunately, for reasons explained below, the Board finds that additional evidentiary development is needed before a fully informed decision may be rendered in this case. As such, 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 on his part. REMAND The Veteran is seeking entitlement to TDIU benefits on the basis that he is unable to secure and maintain substantially gainful employment due to his service-connected left knee and right ring finger disabilities. See VA Form 21-8940 dated July 2010. 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. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). Rating boards should also submit to the Director, Compensation and Pension Service, for extra-schedular consideration of 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). In this regard, the evidentiary record reflects that the Veteran's service-connected disabilities include left knee degenerative arthritis, rated 10 percent disabling from October 21, 1997, 30 percent disabling from March 21, 2001, and 50 percent disabling from December 19, 2006. Service connection has also been established for left knee instability, rated 30 percent disabling from December 19, 2006, and 20 percent disabling from April 1, 2008; and residuals of a right ring finger laceration, rated 10 percent from October 21, 1997. Because the Veteran does not have one service-connected disability rated as at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent, with one disability rated at 40 percent, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) are not met. Nevertheless, the Board finds that the evidence of record raises a question as to whether the Veteran's service-connected disabilities render him unemployable. In this context, the Board notes that the physician who conducted the July 2010 VA Joints examination stated that the Veteran's left knee disability severely affects the Veteran's employability due to decreased mobility and the effects of a chronic pain condition, while his right ring finger disability moderately affects his employability due to decreased dexterity of the dominant hand. See July 2010 VA examination report. While the July 2010 VA examiner noted the individual affects the Veteran's service-connected disabilities have on his employability, the VA examiner did not address whether the effects of the service-connected disabilities are severe enough to result in the Veteran being unable to secure or maintain substantially gainful employment, whether individually or jointly, and there is no other medical opinion of record that addresses whether the Veteran's service-connected disabilities, render him unemployable. The Board may not reject a claim for a TDIU without producing evidence that the Veteran can perform work that would produce sufficient income to be other than marginal. Indeed, VA's duty to assist requires that VA obtain an examination that includes an opinion on the effect of the Veteran's service-connected disabilities on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1994). Therefore, because the evidentiary record does not contain a medical opinion that adequately addresses whether the Veteran's service-connected disabilities render him unemployable, the Board finds a remand is needed in order to obtain an appropriate medical opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain up-to-date VA medical records and associate them with the Veteran's claims folder. 2. Request that an appropriate VA physician review the entire claims file, including specifically the VA examination reports, and provide an opinion regarding whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation, without regard to his non-service-connected disabilities or age. a. The reviewing physician should describe the functional effects caused by the Veteran's service-connected disabilities which affect his employability. b. The examiner must comment on the impact the Veteran's service-connected disabilities have on his employability by specifically providing an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent) that the Veteran's service-connected disabilities, including left knee degenerative arthritis, left knee instability, and residuals of right ring finger laceration, either singularly or jointly, render him unable to secure and follow substantially gainful employment. An opinion must be provided with respect to whether each service-connected disability individually renders the Veteran unemployable, as well as whether the service-connected disabilities, jointly, render him unemployable. c. If the examiner is unable to provide the requested opinion without, first, evaluating the current severity of all of the service-connected disabilities, an appropriate examination(s) should be conducted. d. In providing the requested opinion, the examiner should consider the April 1998 Social and Industrial Survey that is associated with the record. If the examiner the examiner determines that he or she cannot offer an opinion on the Veteran's employability without a current Social and Industrial Survey, such should be performed. e. All opinions expressed must be accompanied by supporting rationale. If the requested opinions cannot be provided without resort to speculation, the reviewing physician should clearly and specifically so specify in the report, and explain why this is so. 3. Thereafter, readjudicate the TDIU claim on appeal, to include referral of the claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extra-schedular evaluation, if deemed appropriate. 4. If the claim continues to be denied, the Veteran and his representative should be provided with a supplemental statement of the case, and they should be afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed and he 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). _________________________________________________ MARJORIE A. AUER 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).