Citation Nr: 1323947 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 08-36 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). In July 2013, the Veteran submitted additional evidence pertinent to his claim along with a waiver of his right to have the RO readjudicate his claim with the additional evidence. 38 C.F.R. § 20.1304(c) (2012). 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 is seeking entitlement to a TDIU. The Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or impairment caused by any disabilities that are not service connected. Id. In this case, service connection is in effect for lumbar disc disease with L5-S1 laminectomy and fusion, rated as 40 percent disabling, and S1 distribution decreased sensation in the left lower extremity associated with lumbar disc disease with L5-S1 laminectomy and fusion, rated as 20 percent disabling. The combined evaluation for the Veteran's service-connected disabilities is 50 percent. See 38 C.F.R. § 4.25 ( 2012). Even if the service-connected disabilities were considered as a single disability because they arose from the same etiology or single accident, the schedular percentage criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. 38 C.F.R. § 4.16(a). Nevertheless, the Veteran's claim for a TDIU may still be considered on an extraschedular basis under 38 C.F.R. § 4.16(b) if the evidence shows that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Unfortunately, the Board may not assign an extraschedular rating in the first instance, as the authority for doing so is vested in the Director of the Compensation and Pension Service. However, the Board may consider whether remand to the RO for referral to the proper official for consideration on an extraschedular basis is warranted. See 38 C.F.R. § 4.16(b); Bagwell v. Brown, 9 Vet. App. 337 (1996) (holding that the Board is precluded from assigning an extra-schedular rating in the first instance, but the Board is not precluded from considering whether referral to the VA officials is warranted); see also VAOPGCPREC 6-96 (Aug. 16, 1996). In this case, the Board finds that the evidence is in equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board has solicited several VA opinions to determine the effects of the Veteran's service-connected disabilities on his employability. The Veteran underwent a VA examination in August 2011, which the Board has previously determined to be inadequate. In that examination report, the examiner stated that she was unable to provide an opinion without resorting to speculation, because a vocational analysis was required, as well as knowledge of the current substantial gain activity (SGA) levels. (SGA levels are financial levels used by the Social Security Administration). The VA examiner subsequently provided a November 2011 opinion which merely reported the Veteran's physical limitations as described by the Veteran, without reference to consideration of the Veteran's prior educational and occupational experiences. In a November 2011 opinion, the same VA examiner concluded that the Veteran was not precluded from substantially gainful employment if employment was available in the Veteran's area that met the substantially gainful employment level in that area and which did not require him to perform duties within his physical limitations. His physical limitations were reported to be walking more than two blocks, standing more than 10 minutes, sitting more than 30 minutes to 1 hour, and heavy lifting. Additionally, the examiner did not explain in her November 2011 opinion why she could now render an opinion, as she had previously stated that she was unable to do so. In October 2012, the same VA examiner provided a supplemental opinion stating that she was unable to render an opinion regarding unemployability, but noted that she could discuss functional impairment. The examiner then stated that the Veteran's service-connected disabilities affected his ability to obtain and maintain physical employment which involved walking more than two blocks, standing more than 10 minutes, sitting more than 30 minutes to 1 hour, heavy lifting, and all strenuous activity, but found that they did not limit his ability to maintain sedentary employment. The examiner did not provide a rationale for that conclusion, and stated that the issue of whether the Veteran was able to obtain or maintain substantially gainful employment was not a question appropriately addressed by a medical clinician. Most recently, a VA supplemental opinion was provided in May 2013, by a different VA examiner. In that opinion, the examiner concluded that the Veteran's service-connected disabilities did not limit his ability to maintain sedentary employment and that "he might be able to perform a desk job for [a] few hours a day, if it does not involve strenuous physical activity." However, the examiner also stated that the Veteran's service-connected disabilities affected his ability to walk more than 2 blocks, stand more than 10 minutes, sit more than 1 hour, or perform heavy lifting and all strenuous activity. It is unclear from the examiner's opinion how the Veteran could be expected to perform sedentary employment if he is unable to sit for more than 1 hour. Moreover, the examiner merely concluded that the Veteran "might" be able to perform a desk job for a "few hours a day." Even if the Veteran were able to perform sedentary work, the examiner did not explain how working a mere "few hours a day" would meet the threshold for "substantially gainful employment." As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See also Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). As the Board finds the evidence to be in equipoise as to whether the service-connected disabilities preclude substantially gainful employment consistent with his education and occupational experience, with resolution of doubt in the Veteran's favor, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. The opinions of record all agree that he is precluded from physical employment. Some opinions suggest that sedentary employment may be possible, but it is unclear how that would be if the Veteran is unable to sit for more than 1 hour, as none of the opinions explained this contradiction. Moreover, employment in a sedentary job for a "few hours a day" does not suggest that he would be able to secure a substantially gainful occupation. Accordingly, affording the Veteran the benefit of the doubt, and to avoid yet another Remand for supporting explanation and rationale, the Board concludes that the Veteran's claim for entitlement to a TDIU should be referred to the Director of Compensation and Pension to determine whether entitlement to an extraschedular rating is warranted. Accordingly, the case is REMANDED for the following action: Refer the Veteran's claim for a TDIU to the Chief Benefits Director of VA's Compensation and Pension Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b), with consideration of the Board's finding above that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. If the determination remains adverse to the Veteran, the Veteran and his representative must be provided a Supplemental Statement of the Case, which includes a summary of all pertinent evidence and legal authority, as well as the reasons for the decision. The Veteran and his representative must then be afforded a reasonable period in which to respond, and the record will then be returned to the Board for further appellate review, as appropriate. The appellant 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). _________________________________________________ U. R. POWELL 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).