Citation Nr: 1336262 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-19 185 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a total rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service in the Army National Guard from May 17, 1975 to May 18, 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claim. A review of the documents in such folder does not reveal any additional documents pertinent to the claim on appeal. In his April 2009 substantive appeal (VA Form 9), the Veteran indicated that he was requesting an increase on all of his disabilities. In this regard, he is service-connected for neck contusion with residual tardy left ulnar nerve, evaluated as 20 percent disabling; left acromioclavicular joint arthritis, evaluated as 20 percent disabling; and cervical spine stenosis C5-6 and C6-7, evaluated as 20 percent disabling. These issues have not yet been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran 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 (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran claims that he is unable to work as a result of his service-connected neck and shoulder conditions and that he has not worked since approximately 2003. Therefore, he alleges that he should be awarded a TDIU. Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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, 3.341, 4.16(a). Disabilities resulting from a common etiology or a single accident are considered one disability. 38 C.F.R. § 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned-pursuant to specifically prescribed procedures-upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) in the first instance and may only refer the claim to the Director of Compensation Service for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). 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. Therefore, in the case of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular percentage standards, the case should be submitted to the Director of Compensation Service for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). In the instant case, the record reveals that the Veteran is currently service-connected for a neck contusion with residual tardy left ulnar nerve palsy, rated as 20 percent disabling; left acromioclavicular joint arthritis, rated as 20 percent disabling; and cervical spine stensosis at C5-6 and C6-7 associated with a neck contusion with residual tardy left ulnar nerve palsy, rated as 20 percent disabling. While such disabilities may be considered as one disability as all have resulted from a single accident, at this time, his combined 50 percent rating renders him ineligible for consideration of a schedular TDIU rating under 38 C.F.R. § 4.16(a). However, as noted in the Introduction, the Veteran has filed claims for increased rating for such disabilities. In this regard, as the outcome of the Veteran's increased rating claims may impact his claim of entitlement to a TDIU, the latter claim is inextricably intertwined with the former claims and adjudication of such downstream issue must be deferred until the AOJ has adjudicated the Veteran's increased rating claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). In addition, the Board notes that, in connection with his claim for TDIU, the Veteran did not submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940). While this is not fatal or a procedural impediment to the Veteran's claim, completion of this form ordinarily includes disclosure of certain information, such as the appellant's full educational, training, and occupational history. Such information is highly relevant and crucial to the Veteran's TDIU claim, and moreover, often leads to obtaining additional relevant information and evidence from the Veteran's employers. Here, in the absence of a completed VA Form 21-8940 application or any other disclosure of information pertaining to the Veteran's educational, training, and occupational history, the evidentiary record is inadequate to permit the Board to determine fully whether the Veteran's service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. As such, on remand, the AOJ should provide the Veteran with a VA Form 21-8940 and request that he complete and return the form to VA. After the completed VA Form 21-8940 has been received, the AOJ should then attempt to obtain additional employment information from the employers listed on the VA Form 21-8940. The Board also notes that it is not clear whether the Veteran receives regular treatment from any provider with regard to his service-connected disabilities. Therefore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his service-connected disabilities and to submit any treatment records or statements addressing whether he is capable of securing or following substantially gainful employment. Thereafter, any identified records should be obtained for consideration in the Veteran's appeal. Finally, the Board observes that the Veteran was provided with two VA examinations in order to determine whether his service-connected disabilities rendered him unemployable. In this regard, a July 2009 VA examiner opined that the Veteran's service-connected cervical spine and left shoulder disabilities rendered him unemployable. However, a December 2010 VA examiner determined that the Veteran's service-connected disabilities prevented him from engaging in heavy manual labor and that he was unable to perform work above the level of his chest, but he could engage in sedentary employment. Therefore, after completing the aforementioned development and adjudicating the referred increased rating claims, the AOJ should review the record and conduct any additionally indicated development, to include obtaining an addendum opinion regarding whether the Veteran's service-connected disabilities render him unemployable, if necessary. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any healthcare provider who treated him for his service-connected disabilities since May 2009 and to submit any additional statements addressing whether he was capable of securing or following substantially gainful employment. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Contact the Veteran and request that he complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) and return it to VA. Once this form is received, and if deemed necessary, request information from the Veteran's prior employer(s) pursuant to information provided on the VA Form 21-8940. 3. After completing the aforementioned development and adjudicating the referred increased rating claims, the AOJ should review the record and conduct any additionally indicated development, to include obtaining an addendum opinion regarding whether the Veteran's service-connected disabilities render him unemployable, if necessary. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for a TDIU should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).