Citation Nr: 1328027 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-23 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating due to service connected disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from May 1992 to December 1993 and from March 1994 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In February 2011, the issue of entitlement to TDIU was remanded by the Board for readjudication. The issue was readjudicated in a supplemental statement of the case (SSOC). The SSOC was issued in March 2012, thereby complying with the February 2011 remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 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 Regrettably, the Board determines that another remand is necessary in this case so that outstanding records and a VA opinion may be obtained. Service connection is in effect for lumbar degenerative joint disease with chronic low back pain with radiculopathy, evaluated as 40 percent disabling and sensory radiculopathy, S1 dermatome, evaluated as 20 percent disabling. The combined disability rating is 50 percent. Thus, the Veteran does not meet the threshold criteria for TDIU under 38 C.F.R. § 4.16(a) (2012). However, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). 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). The record reflects that the Veteran has not been substantially and gainfully employed since 2006, when he reportedly ceased work as a bus driver because of his back pain. He advised a May 2008 VA examiner that the family bar business had become lucrative enough that he did not need to work. He reported that he assists with paper work and occasionally handing a bottle to the bar keeper, for a total of maybe 5 hours per week. He indicated that items behind the bar had been arranged so that the Veteran did not have to reach down for it. At the October 2009 spine examination, he indicated that he had been attending community college for two months as part of the VA Vocational Rehabilitation program. He testified at his March 2010 hearing that he was still in school. From this evidence, the Board is unable to determine whether the Veteran is unable to engage in substantial and gainful employment due to his service-connected disabilities. While the family bar may be providing an income, the income apparently is not due to his activities. Further, while his participation in the Vocational Rehabilitation program and community college courses strongly indicates that he is capable of engaging in an occupation, the outcome of his Vocational Rehabilitation counseling and education program is unknown. For these reasons, the Board determines that his Vocational Rehabilitation file must be added to the claims file before further adjudication takes place. Additionally, even though the Veteran does not meet the threshold criteria for TDIU under 38 C.F.R. § 4.16(a), there is sufficient indication in the file that he is unable to engage in substantially gainful employment due to service-connected disabilities to warrant a VA examination on this issue. Therefore, a remand is also necessary so that this examination may be scheduled. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's VA Vocational Rehabilitation folder with the claims file. All requests and responses, positive and negative, must be documented in the claims file. 2. Once the VA Vocational Rehabilitation folder has been obtained, schedule the Veteran for a VA examination to assess the effects of the Veteran's service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, CONSIDERED IN COMBINATION, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A rationale must be provided for the opinion and should include a discussion of not only the general type of work in which the Veteran could engage, if any, but also of whether the Veteran's service-connected disabilities would limit the number of hours per day or days per week the Veteran could work at such an occupation. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full, the Veteran will be provided a supplemental statement of the case and an opportunity to respond in accordance with applicable statutes and regulations. The case should be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ 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).