Citation Nr: 1324846 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-13 876A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and D.B. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to October 1977. The Service Department verified service with the Air Force from September 1955 to October 1974 and from September 1975 to October 1977 (see PIES request dated in May 2009). The Veteran disputes that there was any break in service, and it is noted that the claims file includes DD Form 214s that verify continuous service from September 1959 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO, in relevant part, denied entitlement to a TDIU. In April 2012, the Board remanded the claim so that the Veteran could be scheduled for a hearing before the Board at the RO (Travel Board hearing). In July 2012, the Veteran and his daughter (D.B.) testified before the undersigned Acting Veterans Law Judge at the RO; a transcript of the hearing is of record. Most recently, in September 2012, the Board remanded this matter for further development, which has been completed, and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this remand. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is warranted in this case before a decision may be rendered. TDIU may be assigned when a 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. 38 C.F.R. § 4.16(a) (2012). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this case, the Veteran is currently service-connected for degenerative joint disease of the cervical spine, evaluated as 20 percent disabling; bilateral hearing loss disability, evaluated as 20 percent disabling; hemorrhoids, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; and left ulnar neuropathy, evaluated as 10 percent disabling. These evaluations do not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Under Secretary for Benefits or the Director of 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) (2012). 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) (2012). The United States Court of Appeals for Veterans Claims has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). Pursuant to the Board's September 2012 remand, the Veteran was afforded examinations in March 2013. Upon evaluation of the Veteran's cervical spine degenerative disc disease, left ulnar neuropathy, and hemorrhoids, a VA examiner indicated that the disabilities did not place the Veteran at higher risk for injury or harm during employment, including sedentary employment. She noted, however, that the Veteran's other non-service connected medical conditions may affect his employability. The Veteran reported to her that he last worked as a case manager for a mental health organization in 2008, quitting due to relocation and difficulty obtaining a job. The Veteran was also afforded a general examination in March 2013; the examiner noted that the Veteran's (non-service conditions of) anemia, chronic kidney disease, and anxiety/posttraumatic stress disorder/dementia prevented him from securing or following a substantially gainful employment. Additionally, the Veteran was provided an audiological examination in March 2013. The examiner stated that the Veteran's hearing loss and tinnitus impacted the ordinary conditions of daily life, including his ability to work. The Veteran specifically reported that as a case manager, people complained that they could not hear. Although the Veteran has not been found to meet the schedular requirements for a TDIU, based on the evidence cited herein, the Board finds, however, that there remains a question of whether consideration for an extra-schedular evaluation is warranted. 38 C.F.R. § 3.321(b)(1) (2012). He has been afforded multiple examinations to evaluate his disabilities, however, he has not been provided one examination taking into account all of his disabilities as a whole. Notably, the evidence is not clear whether the Veteran's service-connected disabilities render him unemployable. It appears that his service-connected hearing loss and tinnitus impact his ability to work, but no opinion has been provided whether they, or in combination with his other service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. Therefore, the Veteran must be provided another examination on remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. The Board cannot assign an extraschedular evaluation under in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (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). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claim. In conclusion, the Board refers the Veteran's 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 actions: 1. Schedule the Veteran for an examination with an appropriate medical professional who is qualified to offer an opinion regarding whether the Veteran is unemployable. In proffering an opinion, the examiner should review the claims file, and then offer an opinion as to whether the Veteran's service-connected disabilities, singularly or jointly, at least as likely as not (a 50 percent or greater probability) render him unable to secure or follow a substantially gainful occupation, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. All opinions expressed should be accompanied by a supporting rationale. 2. Refer the Veteran's case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of whether an extra-schedular rating is warranted 38 C.F.R. § 4.16(b). The response from the Under Secretary for Benefits or the Director of Compensation and Pension Service must be included in the claims file. 3. Then, readjudicate the claim based upon the response from the Under Secretary for Benefits or the Director of Compensation and Pension Service, and the TDIU examination. If the determination remains less than fully favorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. 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). _________________________________________________ A. C. MACKENZIE 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).