Citation Nr: 1323252 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-48 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied the Veteran's claim. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 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. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the Board notes that a TDIU rating may be assigned under 38 C.F.R. § 4.16(a) or (b), depending on whether the Veteran meets the minimum threshold disability rating(s) described in 4.16(a). Under 4.16(a), disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is 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, such disability shall be ratable as 60 percent or more and if there are two or more 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. 38 C.F.R. § 4.16(a). When a Veteran does not meet the rating criteria for a TDIU rating under 38 C.F.R. § 4.16(a), they are nevertheless to be considered for a TDIU rating under 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Veteran is service-connected for PTSD at a 50 percent disability rating, for tinnitus, at a 10 percent disability rating, and for bilateral hearing loss at a noncompensable disability rating, for a combined disability rating of 60 percent. Based upon these ratings, the Veteran does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, the record contains competent evidence suggesting that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, such that a referral of the TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). For example, the Veteran submitted October 2008, and April 2009 and September 2009 statements of his VA physicians that indicate that his PTSD renders him unemployable. Moreover a VA examiner in April 2009 noted that it was plausible to suggest that symptoms inherent within the Veteran's diagnosis of PTSD significantly limit his ability to maintain long-term employment in most work settings. In light of the above, an extra-schedular evaluation under 38 C.F.R. § 4.16(b) should be considered. The Board realizes it cannot assign an extra-schedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director has determined that an extra- schedular evaluation is not warranted does the Board have jurisdiction to decide the claim on the merits. In conclusion, the Board refers the Veteran's TDIU claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Submit the TDIU claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). All of the Veteran's service-connected disabilities, as well as his employment history, educational and vocational attainment and all other factors having a bearing on his employability (or lack thereof) should be considered. 2. After completion of the above, the AOJ should readjudicate the appellant's claim. If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case. The Veteran should be afforded an opportunity to respond before the case is returned to the Board for further review. 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 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).