Citation Nr: 1314787 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-06 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION Please note 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 Veteran had active military service from November 1943 to February 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran and his son testified before the Board at a September 2012 hearing. A transcript of the hearing is of record. This case was previously before the Board in October 2012, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case is once again before the Board for appellate consideration of the issue on appeal. 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 As noted above, the instant case was remanded by the Board in October 2012 for additional development. Specifically, the Board referred an increased rating claim for the Veteran's posttraumatic stress disorder (PTSD) and instructed the Veteran be provided a VA general medical examination to obtain an opinion regarding the impact of the Veteran's service-connected disabilities on his employability. The AOJ issued a rating decision in March 2013 awarding a 100 percent schedular evaluation for the Veteran's PTSD, effective November 12, 2012. The AOJ then issued a March 2013 supplemental statement of the case (SSOC) determining that, with the award of a 100 percent schedular evaluation, the remanded issue of entitlement to TDIU was rendered moot. However, the AOJ did not consider whether a TDIU evaluation may be warranted for the period on appeal prior to the assignment of a 100 percent schedular evaluation. Therefore, this issue remains on appeal; however, as it has not yet been adjudicated by the AOJ on the merits, a remand is necessary prior to appellate review. Further, with respect to the outstanding claim for TDIU, while the Veteran was provided three separate examinations to consider his service-connected disabilities individually, contrary to the instructions provided by the October 2012 remand, there is no single competent medical opinion addressing the Veteran's TDIU claim in relation to all of the Veteran's service-connected disabilities combined. VA may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. VA has a duty to obtain an examination and an opinion on what effect the service-connected disabilities have on the Veteran's ability to work. See Friscia v. Brown, 7 Vet. App. 294 (1995). Finally, with regards to whether a TDIU evaluation may be warranted prior to November 12, 2012, the Board notes that consideration of an award of TDIU must also take into account whether TDIU is warranted on an extraschedular basis for the period on appeal where the Veteran may not have met the schedular criteria. However, the Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v Principi, 15 Vet. App. 1 (2001). As such, on remand, the AOJ must also consider whether referral of the Veteran's claim to the Director of Compensation and Pension may be appropriate for a determination as to whether a TDIU should be awarded on an extra-schedular basis. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA general medical examination to determine the combined impact of the Veteran's service-connected disabilities on his employability prior to November 12, 2012. The examiner should review the claims file in conjunction with the examination and indicate that such review has occurred. Following a claims file review and examination, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that, prior to November 12, 2012, the Veteran's service-connected PTSD, residual scar of the head, bilateral hearing loss and tinnitus disabilities were, either alone or in the aggregate, sufficient to preclude substantially gainful employment in light of his professional qualifications and employment history and without consideration of his age or any nonservice-connected disorders. The examiner should specifically address the lay evidence provided by the Veteran and his son in the September 2012 hearing in his/her opinion. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. For any period on appeal in which the Veteran does not meet the schedular criteria for TDIU, determine whether the Veteran's TDIU claim should be referred the Director of Compensation and Pension for extra-schedular consideration. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed 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 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). _________________________________________________ KELLI A. KORDICH Acting 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).