Citation Nr: 1325840 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-26 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served from September 1968 to September 1971, including combat service in Vietnam, and his decorations include the Combat Medical Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to a TDIU. The Veteran originally requested a hearing before a decision review officer (DRO) in his December 2009 notice of disagreement; however, in a February 2011 statement, the Veteran withdrew his request for a DRO hearing. The hearing request is therefore deemed withdrawn. 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 In this case, the Veteran's sole service connected disability is his posttraumatic stress disorder (PTSD), rated as 50 percent disabling. Therefore, the minimum percentage requirements for TDIU set forth in 38 C.F.R. § 4.16(a) are not met. Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran was "ineligible for 4.16(b)-TDIU consideration." Id. In this case, the RO did not submit the Veteran's TDIU claim to the Director of Compensation and Pension for extraschedular consideration. As such, this matter must be remanded so that, if not rendered moot, the RO can do so. Moreover, the record shows that the Veteran is not working and the evidence, and in particular the GAF scores assigned during the appeal, suggests that he may be unemployable due, at least in part, to his service-connected PTSD. The record reflects that he worked full-time as a bus driver from November 1976 to February 2000. Additionally, the record shows that the Veteran has resided in an assisted living facility since at least July 2010, and experiences depression and nightmares. Accordingly, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to ascertain whether his PTSD renders him unemployable. In this regard, the Board observes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). While on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his service-connected PTSD since July 2011. Thereafter, any identified records, to include those from the Kiva of Palatka Assisted Living Center and any VA healthcare provider dated from July 2011 to the present that are not already included in the claims file should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit medical evidence as well as lay statements from himself and from individuals who have first-hand knowledge of the impact of his psychiatric disability on his ability to work. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. After physically or electronically associating any pertinent, outstanding records with the claims folder, including treatment records from the Kiva of Palatka Assisted Living Center and the Gainesville, Florida VA Medical Center (VAMC), schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational specialist. The claims folder should be made available to and reviewed by the examiner. All appropriate tests should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his psychiatric disability renders him unable to secure or follow a substantially gainful occupation. The examiner must take into consideration the Veteran's level of education, special training, and previous work experience. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 3. Then readjudicate the appeal. Thereafter, if the schedular requirements set forth in 38 C.F.R. § 4.16(a) are not met, refer his TDIU claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extraschedular TDIU rating under 38 C.F.R. § 4.16(b). 4. If the benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. 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). _________________________________________________ STEVEN D. REISS 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).