Citation Nr: 1333106 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 04-07 193 ) 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). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty for training from May to July 1957 and had active service from June 1961 to August 1965. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2009, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript is associated with the claims file. In July 2009, August 2010, April 2012, and April 2013 the Board remanded this claim for additional development. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records, an August 2013 VA examination, and a July 2013 RO rating decision that continued the Veteran's disability ratings for his service-connected bilateral hearing loss, tinnitus, calluses of the right foot, calluses of the left foot, and laceration scar of the left index finger. Though the RO has not reviewed those documents as related to the issue on appeal the Board finds that the Veteran is not prejudiced since the Veteran's claim is once again being remanded for further development. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Unfortunately, the Board finds that once again a remand is warranted because the previous remands were not complied with. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Thus, as discussed below, the Board finds that a remand is necessary to comply with the April 2013 Board remand. The Veteran is service-connected for: a laceration scar of the left index finger (10 percent); calluses of the right and left foot (10 percent each); a scar on the right shin (noncompensable); ingrown toenails (noncompensable); bilateral hearing loss (10 percent) and tinnitus (10 percent). His combined total is 40 percent from December 23, 2010. In April 2013 the Board remanded in order for the Veteran's case to be submitted to the Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). It was noted that the AMC should take care to provide an accurate statement of Veteran's disabilities and of his work history. The April 2013 remand also noted that in a January 2013 memorandum, the AMC considered the claim under 38 C.F.R. § 4.16(b), but incorrectly stated the combined evaluation was at 30 percent; the AMC did not acknowledge the ratings in place at that time for bilateral hearing loss (10 percent) and tinnitus (10 percent) which brought the combined evaluation to 40 percent disabling. It was also noted that the memorandum was signed by the "Chief of 211B staff, Compensation Service" rather than the Director of Compensation and Pension Service. The April 2013 remand gave a detailed history of the Veteran's educational and employment history; it noted that the Veteran did not finish high school at all and most records show he only had a ninth grade education (See May 1957 report of medical history, July 1988 original VA claim, and August 2001 TDIU application.) Also, his prior experience was as a cook or chef. (See August 2001 TDIU application and 1990 worker's compensation lawsuit documents.) Regarding work history, the Board finds that at enlistment in May 1957, a report of medical history showed his usual occupation was meat cutter. His DD 214 from 1957 shows his highest civilian education obtained was nine years. A January 1965 mental hygiene consultation noted he quit school at age sixteen to support himself. In January 1958 and May 1961, reports of medical history noted he had difficulty with studies at school. A June 1965 report of medical history showed his usual occupation was that of a cook. In June 1988, the Veteran stated on an insurance form that he was unable to work because of his leg veins. He reported working nineteen years as a chef with one year in hotel management training. Social Security Administration (SSA) records from April 1990 show the Veteran was disabled due to a severe chronic venous insufficiency. The SSA decision shows in March 1988, the Veteran was hospitalized for acute/chronic venous stasis cellulitis with superficial venous thrombus. In June, Dr. T. found the Veteran was disabled from his current job as a cook due to his prior diagnosis. He could do a stationary job. Dr. R., another treating doctor, stated at a hearing that the Veteran's condition would preclude any job that required standing. If he had a job, he would have to follow guidelines elevating his feet. SSA determined that the Veteran could not even do light work due to his disability. With the exception of on June 1996 private provider record which noted the Veteran had a shoulder problem but "continues to work around his ranch" the evidence shows the Veteran has been unemployed since 1988. In his August 2001 TDIU application, the Veteran initially claimed foot spurs on both feet kept him from working, however at the May 2009 Board hearing he asserted it was his service-connected calluses that kept him from working. (Transcript, p 7.) A May 2004 private social work note shows the Veteran was unable to work due to all disabilities (including nonservice-connected disabilities). A June 2007 VA pulmonary medical record shows the Veteran's reported medical and job history; when he got out of the Army, he worked construction, in a warehouse, at a shoe factory and then as a cook. The Board remanded the Veteran's claim in order for it to be referred to the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). It was specifically directed that the Director must review the evidence of record to determine whether an extraschedular rating was warranted and that the claims folder, to include the May 2012 VA opinion and the above work history summary, should be reviewed. In July 2013 an opinion was rendered by the Chief of Compensation; it was stated that the objective evidence of record did not demonstrate that the Veteran's service-connected disabilities significantly impacted employment since he could work in a sedentary work environment. TDIU was denied on an extraschedular basis because there is "clearly no unusual or exceptional disability pattern that renders application of the regular criteria impractical pursuant to 38 C.F.R. § 3.321(b) (1) and 4.16(b)." The discussion focused only on the May 2012 VA examination and the previous December 2012 memorandum from the Director of Compensation. The Board finds that this July 2013 opinion did not comply with the April 2013 remand directives because while it listed the Veteran's service-connected disabilities it did not list the Veteran's service-connected bilateral hearing loss, there was no discussion of the Veteran's educational and employment history or any other VA examination, nor was there any discussion of the Veteran's service-connected bilateral hearing loss or tinnitus. Furthermore, it was once again rendered by the Chief of Compensation and not the Director of Compensation. Therefore, the Board finds that once again the Veteran's claim must be remanded. This time there must be a discussion of all of the Veteran's service-connected disabilities, including his bilateral hearing loss and tinnitus, a discussion of the Veteran's employment and educational background, and if the opinion is not rendered by the Director then it must be stated why it is rendered by the Chief and not the Director. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for entitlement to a TDIU to the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). The Director must review the evidence of record to determine whether an extraschedular rating is warranted. The Veteran's VA examinations and SSA determination must also be considered. There must be a discussion of all of the Veteran's service-connected disabilities, including his bilateral hearing loss and tinnitus. There must be a discussion of the Veteran's employment and educational background. If the opinion is not rendered by the Director of Compensation then it must be stated why it was rendered by the Chief and not the Director. 2. Readjudicate the claim on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time for response. 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). _________________________________________________ M. G. MAZZUCCHELLI Acting 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).