Citation Nr: 1333503 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-08 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Lauren Murphy, Agent ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2010 decision by the Boston, Masssachusetts, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for the benefit sought on appeal. The Columbia, South Carolina, RO has assumed the role of agency of original jurisdiction in this appeal. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. 38 C.F.R. § 20.704(e) (2013). In his substantive appeal, the Veteran requested a videoconference hearing before a member of the Board. In February 2012, the Veteran's agent withdrew this hearing request. In a November 2011 statement, the Veteran's agent submitted a statement asserting that service connection was warranted for an acquired psychiatric condition secondary to his service-connected left knee and shoulder disabilities. This matter does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. 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 After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the issue of TDIU must be remanded for further evidentiary development Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to 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 disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § 3.341, 4.16, 4.19 (2013). The Veteran essentially contends that he is unemployable due to multiple medical problems including his service connected disabilities. He is currently in receipt of service connection for residuals of a left knee injury with osteoarthritis post total knee replacement (rated as 30 percent disabling); left shoulder limitation of motion due to degenerative arthritis (rated as 20 percent disabling); left distal clavicle resection residuals (rated as 20 percent disabling); and surgical scars (rated as noncompensable). His combined service-connected evaluation is 60 percent. The Veteran's nonservice-connected disabilities include hypertension; right knee osteoarthritis; and sleep apnea. While the Veteran's combined service-connected disability evaluation does not meet the threshold disability percentage requirements for consideration of a TDIU on a schedular basis, entitlement to benefits on an extraschedular basis may be considered. In this regard, the Veteran has not been afforded a VA examination to determine whether his service-connected disabilities alone render him unemployable. The Board is aware the Veteran was afforded an examination in September 2009 for the Veteran's service connected disabilities but the examination failed to provide an opinion addressing the Veteran's employability. In addition, a VA examination for the Veteran's knee in February 2011 indicated there were no joint condition related effects on the Veteran's ability to function in his usual occupation or routine daily activities. The 2011 examination did not address the Veteran's other service connected disabilities. VA has the duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disabilities has on his ability to work. See Friscia v. Brown, 7 Vet. App. 294 (1994) (holding in the case of a claim for TDIU, that VA has a duty to obtain medical opinions as to employability). On Remand, the Veteran shall be afforded a VA examination to determine whether his service connected disabilities render him unable to secure or follow a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claim for TDIU, including any updated VA treatment records since June 2011. 2. The RO or AMC must fully develop and adjudicate the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder secondary to his service-connected left knee and shoulder disabilities. 3. Then, the RO or AMC also should arrange for the Veteran to be scheduled for a VA examination by an examiner with the sufficient expertise to ascertain whether he is unemployable due to his service-connected disabilities. The claims folder, to include any records maintained in the electronic Virtual VA system, must be reviewed in conjunction with the examination. The examination should provide a complete explanation and rationale for the opinion. For the Veteran's claimed TDIU, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran's service-connected disabilities (either individual or in combination with each other) are sufficient to render the Veteran unable to obtain or maintain any form of substantially gainful employment. In making this determination, the examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to obtain or maintain substantially gainful employment in light of the severity of his service-connected disabilities (standing alone). The supporting rationale for all opinions expressed must be provided. 3. Thereafter, the RO or AMC should review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then, the claim on appeal should be readjudicated. [Note: the TDIU issue is inextricably intertwined with the issue that was referred to the RO in the Introduction as the outcome of those issues may affect the TDIU issue.] If the claim for TDIU remains denied, an appropriate SSOC should be issued and provided to the Veteran and his representative. The case should then be returned to the Board for further appellate review, 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. 2013). _________________________________________________ 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) (2013).