Citation Nr: 1331863 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-21 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. The Veteran served on active duty from July 1950 to November 1950. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) that denied a claim for a TDIU rating. In August 2013, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. 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 essentially claims that his established service-connected disabilities prevent gainful employment, warranting a TDIU rating. He is currently service-connected for bilateral flat feet with plantar fasciitis (rated 30 percent); hallux valgus of the right foot (rated 0 percent); hallux valgus of the left foot (rated 0 percent); hammer toe of the right foot (rated 0 percent); and for hammer toe of the left foot (rated 0 percent). Therefore, the minimum percentage requirements for a TDIU rating set forth in 38 C.F.R. § 4.16 (a) are not currently met. The Veteran was last afforded a VA foot examination in May 2011. The diagnoses were acquired bilateral flat feet with plantar fasciitis; bilateral hallux valgus; right foot callosities; and bilateral reducible hammertoes. As to the affect of such conditions on the Veteran's usual occupation and daily activities, the examiner reported that such conditions decreased the Veteran's ability to walk for a quarter of a mile secondary to pain. A subsequent August 2013 treatment report from B. A. Gabriel, M.D., D.P.M., indicated that the Veteran was seen with complaints of generalized pain in both feet and ankles that had been present for years and aggravated by activity. The Veteran reported that his bilateral foot and ankle pain had worsened over the previous two to three years to the point that he felt like his feet would give out and that he had difficulty walking. It was noted that the Veteran was presently using a cane because of discomfort and unsteadiness of his gait. Dr. Gabriel indicated that the Veteran's condition appeared to be slowly worsening. The assessment was probable mild, low grade, rear foot and greater tarsal arthritis; diabetes with peripheral vascular disease; and an apparent history of venous stasis and stasis dermatitis. Dr. Gabriel indicated that he had a rather lengthy discussion with the Veteran regarding the causality of his current lower extremity findings and symptoms, and indicated that the current situation might be potentially related to a previous injury, or might simply be the consequence of normal activities of daily living over a period of many years. At the August 2013 Board hearing, the Veteran testified he had to leave his previous full-time job six or seven years earlier because of his foot disabilities. He stated that he was teaching school and that he could no longer go up and down stairs. The Veteran also reported that he was no longer able to help out at his church because he had to climb stairs and he almost fell. He stated that he sometimes played in a mariachi band, but that he would have to sit on a stool or a chair. The Veteran further indicated that he felt that right and left ankle problems, more so than his service-connected right and left foot problems, caused him to be discharged from service. However, service connection for right and left ankle disabilities has been denied on multiple occasions. The Veteran is presently only service-connected for service-connected for bilateral flat feet with plantar fasciitis, hallux valgus of the right foot and left foot, and hammer toes of the right foot and left foot. When the percentage requirements of 38 C.F.R. § 4.16(a) are not met, as in this case, a TDIU rating 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). The Board cannot award a TDIU rating 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. The RO did not submit the Veteran's claim for entitlement to a TDIU rating to the Director of Compensation and Pension for extraschedular consideration. On remand, the RO must consider whether referral is appropriate. Although the Veteran was afforded a VA foot examination in May 2011, the examiner did not address the cumulative effect of all of the Veteran's service-connected disabilities on his unemployability. Additionally, the evidence of record raises a question as to the current severity of the Veteran's service-connected disabilities. As such, the Board has no discretion and must remand this matter to afford the Veteran a VA examination, with an opinion from an examiner, after a review of the entire claims file, as to whether all of his service-connected disabilities, either alone or in the aggregate, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. See Colayong v. West, 12 Vet. App. 524, 538 (1999); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Prior to the examination, any outstanding records of pertinent treatment must be obtained and added to the record. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for his service-connected disabilities since March 2010. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain records, inform him of such, and advise him he may obtain and submit those records. 2. Schedule the Veteran for a VA examination by an appropriate medical professional to ascertain the current severity of his service-connected disabilities (bilateral flat feet with plantar fasciitis, hallux valgus of the right foot, hallux valgus of the left foot, and hammer toe of the right foot, and hammer toe of the left foot) and to obtain a medical opinion as to whether the service-connected disabilities alone render him unemployable. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner must describe all current impairment from each of the service-connected disabilities, and must specifically provide an opinion as to whether the Veteran's service-connected disabilities, either alone or in the aggregate, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner must 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. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and 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). _________________________________________________ RONALD W. SCHOLZ 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).