Citation Nr: 1320082 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-02 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and BB ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from October 1948 to October 1949 and from March 1952 to November 1953. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction of this case belongs to the RO in Cheyenne, Wyoming. In May 2013 the Veteran testified during a Board hearing before the undersigned at the RO in Cheyenne, Wyoming. A transcript of that hearing is of record. Evidence pertinent to the matter on appeal (an October 2010 VA Form 21-2680, Examination for Housebound Status of Permanent Need for Regular Aid and Attendance) was received contemporaneously with the Veteran's May 2013 Board hearing. The Veteran has waived (May 2013 Board hearing transcript, pages 8-9) initial RO consideration of this evidence. 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 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 The Veteran asserts that he is unemployable due to service-connected bilateral knee disability. In a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in June 2010, the Veteran indicated that he had last worked full time in 1983 as a custodian. He reported that he had completed high school and had no additional training or education. The Veteran is service-connected for bilateral sensorineural hearing loss, rated as 30 percent disabling, residuals of medial meniscectomy of the right knee with osteoarthritis, rated as 20 percent disabling, residuals of medial meniscectomy of the left knee with history of wrenching injury and osteoarthritis, rated as 20 percent disabling, and tinnitus, rated as 10 percent disabling. His combined service-connected disability rating is 60 percent. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of 1 or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Where a veteran does not meet the above percentage evaluation requirements, he still may be deemed totally disabled on an extraschedular basis. To qualify, a veteran must be unemployable by reason of his service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities do not meet the schedular criteria for a TDIU rating. Even when combining the Veteran's disability of the knees as one disability, and thus obtaining a rating of 40 percent for the knee disorder (the same could be done with the Veteran's hearing loss and tinnitus disabilities), a TDIU is unwarranted because the Veteran does not have a combined rating of at least 70 percent. Likewise, the Veteran clearly does not have just one service-connected disability. 38 C.F.R. § 4.16(a). The evidence in the claims file, however, reasonably raises the question of whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability pursuant to 38 C.F.R. §4.16(b). In this regard, the Board notes that in August 2010 the Veteran underwent a VA examination of the knees. Prior to performing a contemporaneous physical examination of the Veteran's knees, the August 2010 VA examiner provided a brief review of the Veteran's medical and occupational history and elicited the Veteran's current symptoms. The assessment was degenerative joint disease/osteoarthritis, bilateral knees. The August 2010 VA examiner provided a "Statement of Individual Unemployability" as follows: Because of the degenerative changes in both of [the Veteran's] knees, the [Veteran] would not be a candidate for any type [of] employment that would require walking/standing for over 2 to 3 minutes, frequent change of position from sitting to standing, heavy lifting over 10 pounds, or any type of bending or standing. While the Veteran has asserted that his unemployability is related to problems with his knees, the Board again notes that the Veteran is also service-connected for bilateral hearing loss and tinnitus disability. Although the Veteran did not discuss hearing impairment during his May 2013 Board hearing, the Board observes that a July 2010 VA audiological examiner stated that the Veteran "would most likely have difficulty in a work environment in which auditory communication is critical." On remand, the Board directs the RO/AMC to provide a single VA examination to determine whether the Veteran is unemployable solely due to his service-connected bilateral knee disability, sensorineural hearing loss, and tinnitus. Instead of piecemeal opinions regarding the specific effects of one particular service-connected disability on the Veteran's employability, an aggregate opinion is necessary so as to determine whether all of his service-connected disabilities, taken together, prohibit him from sustaining gainful employment. The examiner is directed to review all prior VA examinations of record, as well as the Veteran's lay statements and testimony and any lay statements of his friends and family. The Board itself may not assign an extraschedular rating in the first instance, but must leave that initial determination to the Under Secretary for Benefits or the Director of the Compensation & Pension Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board may, however (as in this case), consider and adjudicate the issue of whether the RO should refer such a matter to appropriate personnel for extraschedular consideration pursuant to the procedures of 38 C.F.R. § 4.16(b), and further may determine, after an initial review by the authorities pursuant to § 4.16(b), the propriety of assigning an extraschedular evaluation. Thus, after the above examination is conducted, the Board determines that remand for consideration of the issue of entitlement to an extraschedular rating under the provisions of 38 C.F.R. § 4.16(b) is warranted. 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. The AOJ should request all VA medical records (not already of record) pertaining to examination or treatment of the Veteran subsequent to October 2012 and associate them with the claims file. 2. The RO/AMC shall schedule the Veteran for a single VA TDIU examination to determine whether the Veteran's service-connected disabilities alone have prevented him from engaging in all forms of substantially-gainful employment, consistent with his education and occupational experience. The claims folder must be made available to the examiner for review and the report must indicate whether such review was accomplished. The examiner is requested to render an opinion on the following: Without regard to the Veteran's age or the impact of any nonservice-connected disabilities, but with regard to his education level, it is at least as likely as not that the Veteran's service-connected bilateral knee disability, sensorineural hearing loss, and tinnitus alone have precluded him from engaging in substantially-gainful employment. It should be noted that the Veteran is not currently service-connected for any type of cardiovascular disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities alone are of such severity to result in unemployability. A rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. The case should then be forwarded to the Director of the Compensation and Pension Service for consideration of the assignment of an extraschedular rating for the Veteran's TDIU claim pursuant to the provisions of 38 C.F.R. § 4.16(b). 4. Thereafter, the AOJ should readjudicate the TDIU issue. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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). _________________________________________________ MICHAEL A. HERMAN 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).