Citation Nr: 1316920 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 11-30 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from February 1991 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Atlanta, Georgia, regional office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a hearing before a Veterans Law Judge via videoconference in his substantive appeal. He requested that his hearing be canceled in November 2012 and asked that a decision be made based on the evidence of record. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. 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. REMAND The Veteran argues that his service connected disabilities combine to render him unemployable. The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2012). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2012). According to the applicable laws and regulations, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a) (2012). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet these percentage standards if he or she is unemployable by reason of his or her service-connected disability(ies). 38 C.F.R. § 4.16(b) (2012). The Veteran's record shows that entitlement to service connection has been established for the following disabilities: patellofemoral pain syndrome with degenerative joint disease of the left knee, currently evaluated as 30 percent disabling; status post acromioclavicular separation of the right shoulder with degenerative changes, evaluated as 20 percent disabling; patellofemoral pain syndrome with degenerative joint disease of the right knee, currently evaluated as 10 percent disabling; a scar of the left knee, currently evaluated as zero percent disabling; and a scar of the right knee, currently evaluated as zero percent disabling. With consideration of the bilateral factor, the Veteran has a combined evaluation of 50 percent. Thus, the Veteran does not currently meet the schedular criteria for consideration of TDIU. 38 C.F.R. §§ 3.340, 4.16(a) (2012). As previously noted, a Veteran who is fails to meet the percentage requirements may still receive a TDIU if he is unemployable by reason of his service-connected disabilities. The evidence includes a June 2011 letter from the Veteran's VA doctor. This letter states that the Veteran is being followed for chronic medical problems that include fibromyalgia, gout, hepatitis C, and gastroesophageal reflux disease. He was stable but needed to be followed up by rheumatology. The Veteran was probably not able to find or maintain gainful employment at this time. The Board notes that the this VA medical opinion, which is the most recent opinion to address the matter, states that the Veteran is probably unemployable but cites to only the Veteran's non-service connected disabilities of fibromyalgia, gout, hepatitis C, and gastroesophageal reflux disease. The affects of the Veteran's service connected disabilities were not specifically noted but also not specifically excluded. In the absence of any evidence regarding whether or not the Veteran would remain unemployable solely due to his service connected disabilities, the Board finds that the Veteran should be afforded a VA examination. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records pertaining to the treatment of the Veteran's service connected disabilities dating from 2009 to the present and associate them with the claims folder. 2. Schedule the Veteran for an appropriate VA examination in order to determine whether or not his service connected disabilities render him unemployable. The claims folder must be made available to the examiner for use in the study of this case. All indicated tests and studies should be conducted. The examiner must note that the Veteran's service connected disabilities include patellofemoral pain syndrome with degenerative joint disease of the left knee; status post acromioclavicular separation of the right shoulder with degenerative changes; patellofemoral pain syndrome with degenerative joint disease of the right knee; a scar of the left knee; and a scar of the right knee. At the conclusion of the examination and review of the record, the examiner should express the following opinion: Do the Veteran's service connected disabilities prevent him from obtaining or maintaining any gainful employment consistent with his education and occupational experience? The reasons and bases for this opinion should be included in the examination report. The examiner is reminded that the Veteran's non-service connected disabilities are not to be considered in determining his employability. If the examiner is unable to express any part of this opinion without resorting to speculation, the reasons and bases for that opinion should be included, and any missing evidence required to provide the opinion should be identified. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. Entitlement to TDIU on an extraschedular basis to include whether or not referral to the Director of the C & P Service for extraschedular consideration is appropriate must be considered. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ ERIC S. LEBOFF 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).