Citation Nr: 1320487 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 06-16 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared and testified at a personal hearing in July 2008 before the undersigned Veterans Law Judge. A transcript of the hearing has been added to the record. In February 2011 and October 2012, the Board remanded this case. 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 Unfortunately, a remand is required in this case. 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 the Veteran is afforded every possible consideration. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). If a Veteran does not meet these threshold minimum percentage standards set forth in 38 C.F.R. § 4.16(a), he still may be entitled to a TDIU on an extra-schedular basis, provided he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In this case, the Veteran had a combined rating of 60 percent effective May 3, 2004 (with a bilateral factor added), a combined 70 percent rating from August 9, 2006 (with a bilateral factor added), and a combined rating of 80 percent from September 10, 2009 (with a bilateral factor added). Currently, the Veteran is service-connected for residuals of a left arm fracture, rated as 40 percent disabling; residuals of lumbosacral strain, rated as 40 percent disabling; sciatic nerve impairment of the right lower extremity, rated as 20 percent disabling; sciatic nerve impairment of the left lower extremity, rated as 20 percent disabling; urinary incontinence, rated as 20 percent disabling; a left wrist disability, rated as 10 percent disabling; and a left knee disability, rated as non-compensably disabling. The Board previously remanded this case for the Veteran to provide information regarding his earned income from employment from August 2010 forward, such as via W-2s, his tax returns, pay stubs, or the equivalent thereof. The Veteran did not reply to that request. The Board also instructed the RO/AMC to obtain VA records and afford the Veteran a VA examination. The Board noted that the examiner was to reassess the severity of the service-connected disabilities, all of them in combination, including those most recently service connected, on the Veteran's ability to obtain and maintain substantially gainful employment versus just what would be considered marginal employment in comparison, given his level of education, prior work experience and training, but not any impact on account of his age or disabilities that are not service connected. A review of the claims file as well as VA's Virtual System reflects that the VA records were obtained and the requested examinations were conducted in March and April 2013. The examination reports basically indicated that the most disabling conditions by virtue of their ratings, the low back and right arm, did not limit his employability. However, his sciatic nerve impairment as well as his urinary incontinence resulted in limitations because the Veteran needed frequent breaks and was advised to avoid prolonged standing, sitting, walking, lifting, and climbing; nevertheless, it was opined that sedentary employment was possible. In reviewing the examination reports, it is clear that each examination considered the industrial impact of each individual disability, but not the cumulative effect of all disabilities, despite the Board's directive to consider all of the disabilities in combination. Also, it seemed inconsistent that the two disabilities that are each rated as 40 percent disabling do not result in industrial impairment. The VA examination reports made no comment on whether the Veteran is only capable of marginal employment, despite instructions by the Board to do so. In light of the foregoing, further action is necessary in this case, in accordance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). A VA medical addendum should be obtained in order to determine the combined effect of all service-connected disabilities on the Veteran's employability. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical addendum to assess the severity of the service-connected disabilities, in combination, on the Veteran's ability to obtain and maintain substantially gainful employment versus just what would be considered marginal employment in comparison, given his level of education, prior work experience and training, but not any impact on account of his age or disabilities that are not service connected. If it is determined the Veteran is indeed incapable of obtaining or retaining substantially gainful employment because of the severity of his service-connected disabilities in combination, then the examiner is additionally asked to indicate the approximate date of onset of this total occupational impairment. It is imperative the examiner discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 2. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 3. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which 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 2002 & Supp. 2012). _________________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).