Citation Nr: 1332859 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 06-08 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from September 1944 until June 1946. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA), Regional Office (RO), in St. Louis, Missouri; however, jurisdiction of the claim is with the RO in Newark, New Jersey. The Board initially considered this appeal in March 2009 and remanded the claim for additional development. The RO/Appeals Management Center (AMC) completed all requested development, and the case was returned to the Board. The Board denied the claim in an August 2010 decision. The Veteran appealed the August 2010 decision to the United States Court of Appeals for Veterans Claims (Court), and in a Memorandum Decision dated in March 2012, the Court vacated the portion of the Board's August 2010 decision concerning TDIU and remanded the claim for further development (the Board's decision concerning an increased evaluation for posttraumatic stress disorder was affirmed). This matter was again before the Board in November 2012 and May 2013 at which time the Board remanded the case for additional development. Regrettably, there has not been substantial compliance with the Board's November 2012 and May 2013 remand directives, leaving the Board with no recourse other than to remand the matter again. Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 contends that he is entitled to a TDIU. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2013). Where these percentage requirements are not met, entitlement to the benefits 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 disability. See 38 C.F.R. § 4.16(b). The Veteran is presently service connected for: PTSD, rated as 50 percent disabling from May 18, 2004, residuals of a gunshot wound to the left leg, muscle group XI, rated as 20 percent disabling from June 23, 1948, residuals of a shell fragment wound, right arm muscle, group V, rated as 10 percent disabling from June 26, 1946, residuals of a left knee injury with arthritis, rated as 10 percent disabling from May 26, 1998, tinnitus, rated as 10 percent disabling from November 18, 1998, bilateral hearing loss, rated as 20 percent disabling from July 11, 2013, status post traumatic neuralgia of the right upper extremity, right arm associated with residuals of shell fragment wound, rated as 10 percent disabling from May 18, 2004, and post traumatic peripheral sensory neuropathy of the left leg, rated as 20 percent disabling from July 11, 2013. His combined disability evaluation of 80 percent, effective May 18, 2004, meets the percentage requirements of 38 C.F.R. § 4.16(a). The basis of the Board's November 2012 and May 2013 remand directives was to schedule the Veteran for a Social and Industrial Survey or similar evaluation to "ascertain if the aggregate effect of the Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment in light of his work history as a pressing supervisor and education consisting of 2 years of high school education." As noted, the Court, in March 2012, vacated the Board's prior August 2010 denial of this claim and remanded the claim for further development. The Court determined that the August 2010 denial did not reflect consideration of whether the combined effect of the Veteran's service-connected disabilities caused him to be unable to secure or follow substantially gainful employment. Rather, as the Court explained, there had been several, separate examinations addressing various conditions and their effect on the Veteran's employability individually. A January 2013 VA Social and Industrial Survey was found to be inadequate. See Board remand dated in May 2013. In June 2013, the RO underwent a new VA Social and Industrial Survey. However, in addressing the question of whether the aggregate effect of the Veteran's service-connected disabilities precluded him from securing and maintaining substantially gainful employment in light of his work history as a pressing supervisor and education consisting of 2 years of high school education, the VA examiner, a psychologist, said that such an opinion was out of her "knowledge, practice and expertise". She explained that she was only able to offer an opinion regarding the effect that the Veteran's PTSD had on his employability. The Veteran thereafter, in July 2013, underwent a VA general examination that addressed findings of each of his service-connected disabilities and the impact that each disability had on his ability to work. Thereafter, in September 2013, a VA medical opinion was obtained that summarized the findings of the July 2013 examination as well as additional medical evidence of record pertaining to the service-connected disabilities, but again did not address the question of whether the aggregate effect of the Veteran's service-connected disabilities precluded him from securing and maintaining substantially gainful employment as VA had requested. Indeed, the Veteran's representative noted as much in written argument located in the Veteran's Virtual VA folder dated in September 2013. Accordingly, another remand is necessary to ensure substantial compliance the Board's November 2012 and May 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Based on the foregoing, 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. Request an addendum medical opinion regarding whether the aggregate effect of all of the Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment in light of his work history as a pressing supervisor and education consisting of two years of high school education. The reviewer must address the impact of each of the Veteran's service-connected disabilities on employment in combination with each other and not in isolation from each other. His age is not for consideration in making the determination. The claims folder must be reviewed by the examiner in conjunction with the opinion, and the examiner must acknowledge this review. A clear rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Following the completion of the above, and any other development deemed necessary, adjudicate the claim for entitlement to TDIU. If the claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give them an opportunity to respond before the record is returned to the Board for further appellate review. The appellant and his representative have 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). _________________________________________________ MICHAEL D. LYON 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).