Citation Nr: 1330863 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 92-17 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert Chisolm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION 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 Veteran served on active duty from July 1952 to July 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 1992, the Veteran presented sworn testimony during a personal hearing in Cleveland, Ohio. A transcript of the hearing has been associated with the Veteran's VA claims file. In May 2012, the Board denied the Veteran's claim for TDIU, an increased disability rating for bilateral hearing loss, an earlier effective date for the grant of service connection for left ear hearing loss, tinnitus, and otitis media, and entitlement to an extraschedular evaluation for bilateral hearing loss. In April 2013, pursuant to a Joint Motion for Remand dated that same month, the United States Court of Appeals for Veteran's Claims remanded the portion of the Board's decision which denied TDIU. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to TDIU. After a review of the evidence of record, the Board finds that additional development is needed prior to deciding the claim. 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 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that 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). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, the Veteran's service-connected disabilities include: bilateral hearing loss, rated as noncompensable prior to April 3, 2003, rated 10 percent disabling prior to September 7, 2007, rated as 20 percent prior to January 17, 2012 and rated as 30 percent disabling thereafter; tinnitus, rated as 10 percent disabling; tympanoplasty of the right ear, rated as noncompensable; and otitis media, rated as noncompensable. A combined 40 percent evaluation is in effect. Even if the Board considers all of his ear disabilities as resulting from a common etiology, his combined evaluation is still only 40 percent. Therefore, he does not meet the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). However, where the percentage requirements set forth above are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra- schedular consideration all cases of veterans, who are unemployable due to service-connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b) (2012). The Veteran submitted a private Employability Evaluation report of July 2013 conducted by a certified Rehabilitation Counselor. After an interview with the Veteran and a review of his employment history, he opined that there is no evidence to establish a functional basis that would allow him to obtain and maintain substantially gainful employment, even unskilled employment. The examiner noted that the Veteran was able to work for a period of time, but was only able to secure employment with assistance. In the report, he noted that the Veteran could not work in a team and successfully interact with the public due to his hearing problems. He noted his skills are unique and the need for them has been declining as technology has developed. The examiner, however, did not give reasoning as to why the Veteran could not engage in unskilled work. He stated there would be difficulty in relating to people, but did not explain how this renders him unable to seek even unskilled work. The Board further notes that, at the time of a November 1999 social and industrial survey, the Veteran noted that he did not seek employment after his retirement due to his physical condition and hearing problems. The Board notes the Veteran has arthritis which is not service connected. Specifically, he mentioned that as a pattern maker, he had to be on his feet most of the time. The long hours that he stood on his feet, took a toll on him, especially when he worked at the Air Force Base and had to have surgeries on his legs for varicose veins. The Veteran stated that he did not want to endure any more excruciating ear examinations for future employment. The Board further observes that the Veteran has a long history of full-time work as a pattern maker. He stopped working due to being laid off in 1996 because his position had been eliminated. He took an incentive package provided and did not seek further employment. The Veteran has not been afforded a VA examination regarding the impact of his service-connected disabilities on his employability. Considering the evidence above, the Board finds that the Veteran should be afforded a VA examination to determine if his service connected disabilities alone render him unemployable. In addition to the foregoing, the Board has received additional evidence from the Veteran's attorney consisting of a Social Security Earnings History. This evidence was submitted to the Board without a waiver of RO consideration. Accordingly, the Board must return this case to the RO for consideration of the additional evidence and the issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2012). 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. Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The claims folder should be made available to the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions reached. Notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 2. Then, after ensuring any other necessary development has been completed as a result of the above instruction, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant 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). _________________________________________________ DAVID L. WIGHT 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).