Citation Nr: 1314533 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 03-18 826A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA). The case was previously before the Board in August 2004, when it was remanded for development and adjudication of inextricably intertwined issues. The case returned before the Board in March 2007, when it was again remanded for additional development. The case was again before the Board when the appeal was denied in a November 2008 decision. The appellant appealed the Board's November 2008 denial to the United States Court of Appeals for Veterans Claims (Court). In November 2010, the Court issued a memorandum decision vacating the November 2008 Board decision and remanding the matter to the Board for further adjudication. In March 2011, the Board remanded the case to the RO for development in compliance with the Court's directives. Most recently, the Board remanded the case again in May 2012 for referral of the claim to the appropriate VA officials under 38 C.F.R. § 4.16(b) for extraschedular consideration for TDIU. It appears that an error in processing has resulted in the premature return of this case to the Board without completion of the actions directed by the Board's May 2012 remand. The appellant testified at a travel Board hearing in August 2003. A transcript of this hearing is associated with the claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND This case was previously before the Board in May 2012, when the Board remanded the case for additional development. However, it appears that the case has been prematurely returned to the Board from the RO before the actions directed by the Board's May 2012 remand could be completed. Specifically, the Board's remand directed that the RO should refer the claim to the appropriate VA officials under 38 C.F.R. § 4.16(b) for extraschedular consideration for TDIU. In the event the benefit sought on appeal were not to be granted to the Veteran's satisfaction, the RO was to provide a supplemental statement of the case to the Veteran and afford him the appropriate opportunity to respond thereto. The claims-file reflects that the RO referred this case to a "Director, Compensation and Pension Service" in December 2012. However, no response to that referral nor any further pertinent activity is documented in the claims-file. No decision appears to have been made and no supplemental statement of the case has been issued. In response to the Veteran's inquiry in January 2013, the Board confirmed in an April 2013 letter that there was no supplemental statement of the case in the claims-file. The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). For the sake of clarity, the Board shall here essentially restate the discussion of the necessary development, consistent with what was previously expressed in the May 2012 Board remand. The Veteran is seeking entitlement to a total rating based on individual unemployability (TDIU). In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of a total rating based on unemployability. When the veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). In this case, the Board notes that the Veteran does not currently meet the percentage standards set forth in section 4.16(a). However, the evidence of record presents unusual or exceptional circumstances to the extent that it suggests that the Veteran's service-connected disabilities, although not satisfying the schedular criteria and percentage standards for TDIU, may nevertheless render him unable to engage in gainful employment. Some evidence, such as a recent November 2011 VA examination report, indicates that the Veteran's knee disabilities render him incapable of gainful physical employment, but suggests he may be capable of sedentary employment. Prior VA adjudication of this case, including the Board's vacated November 2008 decision, has been affected by confusion regarding the Veteran's skills and employment history. The Veteran's February 2002 summary of his work history identified his position from 1969 to 1987 as "accountant," suggesting training and experience suited to sedentary work. However, since the time of the Board's vacated November 2008 decision, requested development and new hearing testimony suggest that the previous "accountant" notation was incorrect and, rather, the Veteran only has training and employment history in work featuring physical labor; the Veteran insists that he has never been trained or employed as an accountant for any period of time. The Board observes that a May 1997 Social Security Administration (SSA) evaluation (discussed in the Board's vacated November 2008 decision) specifically identifies an inability to walk or stand for work, but also indicates a completely unimpaired capacity to perform work while sitting. Yet, an undated SSA "Disability Determination Rationale" sheet cites information including the May 1997 evaluation and finds that "an allowance is substantiated" regarding specifically the Veteran's claimed "inability to work since 1/1/96 due to arthritis both knees." A new February 2012 private report from a vocational consultant discusses the Veteran's history and indicates that the Veteran's "bilateral knees condition has resulted in his inability to secure or follow a substantially gainful occupation on a consistent, regular basis since at least December 2002." The Board has also notes that a VA joints examination report from June 2003 offers the statement that the Veteran "is currently disabled and unable to work secondary to his arthritic knees." A March 2003 VA examination report also states that the Veteran "is unable to work, therefore is disabled secondary to his arthritic knees." As a result, a referral of the total rating claim to the Director of the VA Compensation and Pension Service for extra-schedular consideration is warranted. The authority to assign extra-schedular ratings has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service, and not the Board, in the first instance. Therefore, the correct course of action for the Board, where it finds that entitlement to an extra-schedular evaluation may be present, is to raise the issue and remand it for the proper procedural actions outlined in 38 C.F.R. § 3.321(b)(1). Floyd v. Brown, 9 Vet. App. 88 (1996). Accordingly, the case is REMANDED for the following action: 1. The RO should refer the claim to the appropriate VA officials under 38 C.F.R. § 4.16(b) for extraschedular consideration for TDIU. (This action appears to have been previously initiated in December 2012, but no response to the RO's referral is of record. If a response to the December 2012 referral exists and can be obtained, this response should be obtained and added to the claims-file instead of undertaking a new redundant referral for extraschedular consideration.) 2. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ ALAN S. PEEVY 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).