Citation Nr: 1323920 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 05-32 891 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU) ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the RO. The Board remanded the case for additional development of the record in December 2011. 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 being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND A total disability rating for compensation purposes may be assigned where the schedular rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Additionally it is VA's policy that all Veterans who are unable to follow a substantially gainful employment by reason of service connected disabilities shall be rated totally disabled. Therefore, referral to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of Veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. 4.16(b). 'Substantially gainful employment' is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 38 C.F.R. § 4.16(a) states that "[m]arginal employment shall not be considered substantially gainful employment." The Veteran in service connected for sleep apnea, rated 50 percent disabling, and hepatitis C, rated 20 percent disabling. His combined disability rating is 60 percent. He does not meet the scheduler criteria for TDIU. The Veteran is shown to have worked for a few months as a service representative. Before that, he worked as a warehouse manager for a beauty supply company for several years. Prior to that, he was employed as a cook. He attended some college, but does not appear to have actually earned a degree. He receives Social Security Disability Benefits as a result of lumbar degenerative disc disease with right leg radiculopathy and hepatitis. The Administrative Law Judge who granted the benefits in 2002 determined that hepatitis was an impairment, although the evidence actually did not show that it had any effect on employment at that time. The severity of the service-connected hepatitis C was addressed by VA in March 2009. At that time, the VA examiner opined that hepatitis C prevented all employment other than a part-time office work with minimal physical activity. Thus, the March 2009 examiner opined that the Veteran was unable to engage in substantially gainful employment as the result of his service-connected disability of hepatitis C. In March 2012, a VA examiner opined that sleep apnea had no effect on the Veteran's ability to work. In October 2012, a VA examiner opined that the service-connected hepatitis C would not preclude substantially gainful employment. The Veteran would be able to perform light and sedentary work at times when he was not having episodes due to the hepatitis C. The Veteran claimed that, about every six weeks, he had episodes of arthralgia/myalgia that lasted from one to two weeks. Thus, the October 2012 examiner also acknowledged that, while the Veteran could work at times, he was restricted as to the type of work he could perform and would have frequent episodes of absenteeism due to hepatitis C symptoms. While the Veteran does not meet the schedular criteria for a TDIU rating, there is an opinion from a VA examiner indicating that the service-connected hepatitis C prevents him from performing substantially gainful employment. There is a subsequent opinion from a VA examiner that, while the Veteran could work, there would be significant restrictions and periods of incapacitation. In light of this evidence, the Veteran's case should be referred to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU. 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 RO should take appropriate steps to refer the case to the Director, Compensation and Pension service for consideration of the assignment of a TDIU rating under 38 C.F.R. § 4.16. A copy of the referral and any reply, including the Director's decision, should be associated with the claims file. 2. After completion of the above development, the Veteran's claim should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). _________________________________________________ STEPHEN L. WILKINS 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).