Citation Nr: 1320900 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-22 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total evaluation based upon individual unemployability due to service-connected disabilities (TDIU) on an extra-schedular basis prior to August 24, 2006. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that rating decision, the RO granted a TDIU effective on August 24, 2006. The Veteran appealed the assigned effective date. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in November 2012. A transcript of the hearing is associated with the claims file. This matter was previously characterized by the RO as entitlement to an effective date earlier than August 24, 2006 for the award of a TDIU. For reasons discussed further below, the Board has recharacterized the issue as reflected on the title page. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's claim. A review of the paperless file shows a transcript of the November 2012 hearing pertinent to the issue on appeal. A review of the remaining documents in the paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to 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 The Veteran contends that he is entitled to a TDIU prior to August 24, 2006. Review of the record reveals that he initially filed a claim for a TDIU in January 2004. The RO denied a TDIU in a December 2004 rating decision which the Veteran then timely appealed. During the pendency of that appeal, the RO awarded service connection for posttraumatic stress disorder (PTSD) and assigned a 50 percent disability rating effective on August 24, 2006, the date VA received his claim for such disability. Thereafter, in October 2008, the RO awarded a TDIU, effective from August 24, 2006. In assigning the effective date, the RO noted that this was the earliest date upon which the Veteran met the schedular percentage requirements for a TDIU. Pertinent law and regulations provide that a veteran may be assigned a TDIU under two circumstances. 38 C.F.R. § 4.16 (2012). The first is if the veteran meets a minimum percent evaluation and if the evidence of record establishes that his service-connected disabilities render him totally disabled. See 38 C.F.R. § 4.16(a). The minimum percentage requirement is met if the veteran has at least one service-connected disability evaluated at 60 percent or more, or multiple service-connected disabilities with at least one evaluated at 40 percent or more and a combined evaluation of 70 percent or more. Id. Where a veteran does not meet the above percentage evaluation requirements, he still may be deemed totally disabled on an extra-schedular basis. To qualify, the veteran must be unemployable by reason of his service-connected disability or disabilities. 38 C.F.R. § 4.16(b). As indicated by the undersigned during the November 2012 hearing, the matter of entitlement to an extra-schedular TDIU must be referred to the Director of the Compensation and Pension Service because neither the RO nor the Board may assign a TDIU on an extra-schedular basis in the first instance. Id.; see also, e.g., Bagwell v. Brown, 9 Vet. App. 337 (1996). In this case, the record indicates that prior to August 24, 2006 the Veteran was in receipt of service-connected compensation benefits for the following disabilities: type II diabetes mellitus; plantar fibromatosis of the left and right lower extremities; dupuytren's contracture of the left and right hand; erectile dysfunction; nephropathy; bilateral hearing loss; and tinnitus. His combined evaluation for these disabilities was 60 percent. His combined evaluation for disabilities resulting from diabetes mellitus was 50 percent. Thus, prior to August 24, 2006, he did not meet the schedular percentage requirement for entitlement to a TDIU under 38 C.F.R. § 4.16(a). As noted above, however, the Veteran's claim for a TDIU was filed in January 2004. Furthermore, he has submitted lay and medical evidence indicating that he was unsuitable for employment prior to August 24, 2006. For example, he testified in November 2012 that his bilateral hand and lower extremity disabilities affected his ability to walk and grasp. He also indicated that he was unable to perform guard house duties associated with his employment at a VA hospital in approximately 2000 because the guard house was unheated and the cold temperatures would lead to numbness in his feet. A February 2006 VA examination report indicates that he reported that diabetic nephropathy had resulted in difficulty working and performing activities of daily living when frequent catheterizations were required. Given the foregoing, the Board finds that the issue remaining on appeal is whether the Veteran is entitled to an extra-schedular TDIU for the period prior to August 24, 2006. As it appears the RO has never considered whether entitlement to an extra-schedular TDIU is warranted, remand of this appeal is necessary. See Bowling v. Principi, 15 Vet. App. 1 (2001). The Board further finds that additional development is necessary to ensure that the record before the RO (and possibly the Director of Compensation and Pension) is complete. In this regard, evidence indicates the Veteran is in receipt of disability benefits from the Social Security Administration (SSA), but there is no indication that any attempt has been made to obtain a copy of the SSA records upon which this award was based. Additionally, the Board notes that the Veteran testified that he participated in a VA vocational rehabilitation program and was eventually deemed unsuitable for employment in November 2003. See hearing transcript, p. 10. Hence, on remand, the RO or AMC should attempt to obtain any VA vocational rehabilitation files for any period prior to November 2003. Finally, the record does not reflect that any medical examination or opinion was sought regarding the occupational impairment caused by the Veteran's service-connected disabilities prior to the addition of his PTSD in August 24, 2006. As this is the central inquiry of this case, the Board finds that the Veteran's claims file should be forwarded to an appropriate physician (preferably an internist or endocrinologist) for an opinion regarding whether his various service-connected disabilities rendered him unemployable at any point pertinent to this appeal. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should obtain a copy of the records upon which the May 2000 SSA decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The RO or AMC should obtain any VA vocational rehabilitation files pertaining to the Veteran's participation in the program beginning in approximately 2000 at the Syracuse VAMC. 3. After all records and/or responses received are associated with the claims file, forward the Veteran's claims file to an appropriate physician (preferably an internist or endocrinologist) for an opinion regarding the impact that his service-connected disabilities had on his employability prior to August 24, 2006. Access to the claims file and Virtual VA must be made available to the examiner for review. After review of the record, the physician should provide an opinion as to the functional impairment that is demonstrated by the Veteran's service-connected disorders prior to August 24, 2006. It should be discussed whether there was sedentary employment that might have been done, whether physical labor was precluded, and all functional limitations of the service connected disorders set forth below*. If there was non-service connected pathology that rendered him unable to work prior to August 24, 2006, that should be set out. The physician's opinion should address whether the Veteran is able to perform full-time employment, or whether his disabilit(ies) prevented him from working more than a few hours per day. A rationale should be provided for all opinions expressed in the report. *It should be noted that the physician should only consider the following disabilities as service-connected prior to August 24, 2006: type II diabetes mellitus; plantar fibromatosis of the left and right lower extremities; dupuytren's contracture of the left and right hand; erectile dysfunction; nephropathy; bilateral hearing loss; and tinnitus. 4. After the development requested has been completed, the RO or AMC should review the examination reports to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO or AMC must implement corrective procedures at once. 5. After completion of the above development and any additional development deemed appropriate, the RO or AMC is to readjudicate the issue on appeal and, if appropriate, shall refer to the Director of the Compensation and Pension Service the issue of whether an extra-schedular TDIU should be awarded to the Veteran prior to August 24, 2006. If the benefit sought on appeal is not granted, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. 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). _________________________________________________ STEPHANIE L. CAUCUTT 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).