Citation Nr: 1315787 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 08-30 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), to include entitlement on an extra-schedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from January 1966 until January 1968. Historically, the Veteran submitted a claim for an increased rating for posttraumatic stress disorder (PTSD) in October 2005. During the course of this appeal, particularly in June 2009 Board hearing testimony, the Veteran reasonably raised the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a January 2010 decision, the Board decided the increased rating issue and remanded the TDIU issue for additional development. The TDIU issue was denied by the agency of original jurisdiction (AOJ) in a May 2011 Supplemental Statement of the Case. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issues of entitlement to service connection for hypertension, liver disability and gall bladder disability, all secondary to PTSD, have been raised by the record, see April 2013 representative's statement, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND A remand is warranted in this case in order to adequately address the Veteran's TDIU claim, to include consideration of an extra-schedular rating. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Here, the Veteran has one service-connected disability evaluated as 50 percent disabling. In cases such as this one, where the Veteran claims unemployability by reason of service-connected disability but does not meet the schedular criteria under 38 C.F.R. § 4.16(a), the rating board is authorized to refer the case to the Director, Compensation and Pension Service, for assignment of an extra-schedular evaluation. 38 C.F.R. § 4.16(b) (2012). A brief summary of the facts of this case reveals that the Veteran graduated from high school and then worked as a waiter prior to his military service. See service treatment records. He was most recently employed as a hotel bellman, and last worked in 2006. He indicated that he retired because of his service-connected psychiatric disability. See November 2008 VA examination report and June 2009 hearing transcript. He has one service-connected disability, PTSD with dysthymic disorder and alcohol abuse, rated 50 percent disabling. The Veteran's claims file contains several medical opinions with regard to his employability. While 2008 and 2010 VA Compensation and Pension examiners did not provide an opinion that the Veteran is unemployable, his treatment providers have provided such opinions. In a February 2010 statement, Dr. F.S., the Veteran's treating VA psychologist, opined that the Veteran was not employable because of the worsening of his PTSD. In a November 2011 statement, Dr. H.C., the Veteran's treating VA psychiatrist, stated that the Veteran is unemployable due to the severity of his PTSD. The Board finds that this evidence warrants consideration of an extra-schedular evaluation under the provisions of 38 C.F.R. § 4.16(b) (2012). Therefore, the issue of entitlement to a TDIU must be remanded to the AOJ so that it may refer this claim to the Director of Compensation and Pension Service for extra-schedular consideration. Accordingly, the case is REMANDED for the following actions: 1. Refer this appeal to the Director of Compensation and Pension Service, for extra-schedular consideration on the issue of entitlement to a TDIU. See 38 C.F.R. § 4.16(b) (2012). The referral should be accompanied by a full statement as to the Veteran's service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on this issue. 2. Then, the RO or AMC should re-adjudicate the issue of entitlement to a TDIU, considering the determination of the Director of Compensation and Pension Service. If the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. The Veteran and his representative should be afforded the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See 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). _________________________________________________ JONATHAN B. KRAMER 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).