Citation Nr: 1339915 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-19 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1986 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied a rating in excess of 20 percent for the Veteran's bilateral chondromalacia patella. The RO again denied the claim in November 2007. Subsequently, the Veteran perfected his appeal to the Board. In an October 2009 hearing before the Board, the Veteran raised the issue of entitlement of a total disability rating based on individual unemployability (TDIU). The Board in its March 2010 decision denied entitlement to a rating in excess of 20 percent for the Veteran's chondromalacia patella, granted entitlement to degenerative changes of both the Veteran's knees, and remanded the issue of TDIU for proper development. The issue of TDIU is once again before the Board. In the November 2013 Informal Hearing Presentation submitted by the Veteran's accredited representative, it was argued that there was clear and unmistakable error regarding the issues decided in the January 1990 rating decision that denied service connection for the Veteran's ankles, feet, and ulcers; and entitlement to service connection for diabetes secondary to service-connected bilateral knee disabilities. While these issues have been raised by the record, they have not 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, DC. VA will notify the appellant if further action is required. REMAND A remand is necessary so that the RO can refer this case to the Director, Compensation and Pension Service for consideration as to whether TDIU is warranted on an extraschedular basis. In March 2010, the Board remanded this matter to the RO. It directed the RO to adjudicate the issue of entitlement to TDIU. The RO determined that the Veteran was employable and thus TDIU consideration was not warranted. In cases where a Veteran is unemployable due to service-connected disability and has met certain compensation percentage requirements, either the RO or the Board may grant TDIU on a schedular basis in the first instance. 38 C.F.R. § 4.16(a) (2013). As was noted in the March 2010 Board remand, the Veteran did not have the percentages necessary to meet the criteria for consideration of scheduler TDIU, and this remains the case. However, if a Veteran is unemployable due to service-connected disability and those percentages are not met, then the issue of entitlement to TDIU on an extra-schedular basis should be referred to the Director, Compensation and Pension Service. 38 C.F.R. § 4.16(b). For the reasons set forth below, the favorable and unfavorable evidence is sufficient to warrant referral to the Director, Compensation and Pension Service for consideration of extraschedular TDIU. The Board notes in May 2007 the Veteran obtained a Certification of Health Care Provider from a VA examiner in accordance with the Family and Medical leave Act (FEMLA). In the pertinent part of this certification the VA examiner states: "Because he needs narcotic medication from adequate pain control during bad flares, he cannot operate or be around dangerous machinery. Any dangerous task requiring sustained attention would be difficult while using narcotics for pain control." In October 2009, at the Board hearing where the TDIU issue was first raised, the Veteran indicated that he was currently working at a temporary position, he has only done physical work his whole life, and he has not done any clerical work or anything related to clerical work. In April 2010 the Veteran reported that he last worked in September 2007 where he was a material handler. He states that he had to leave his job due to his disability and he has since applied for two other jobs. Regarding his education, the Veteran states he finished high school, but he has not received any post-secondary education. In a June 2010, a VA examination was provided to the Veteran to determine the effect his knee disabilities have on his ability to sustain gainful employment. In this regard, the examiner stated: Under optimal conditions, veteran's right and left knee chondromalacia patella at least as likely as not enables gainful employment. [...] Physical demand work may be problematic for veteran if tasks require bending, twisting, stopping, lifting, or climbing with some degree of frequency. Sedentary work tasks are possible if work environment is relaxed and permit use of stronger pain control medication with ability to move about as needed. If these facts are not permitted then the veteran will have problems with obtaining and sustaining meaningful gainful employment. In July 2013, the Veteran was provided another VA examination on his knee disabilities. In this examination the VA examiner indicates how the Veteran's knee disabilities impact his employability and states: Veteran verbalizes that sometimes due to his knees he cannot even get out of the bed due to his knees. He says that he has good days and bad days and that the bad days hamper him from being able to work. However, the Veteran should do well in a more sedentary profession. The Board in review of this evidence finds that referral to the Director, Compensation and Pension Service for TDIU on an extra-schedular basis is warranted. 38 C.F.R. § 4.16(b). While the VA examiner from July 2013 states that sedentary work is possible for the Veteran, the VA examiner in June 2010 list certain conditions that would allow sedentary work including the use of stronger pain control medication. This condition is further limited by a previous VA examiner who indicated the Veteran would have difficulty with sustained attention under the use of his narcotics. Considering the Veteran's occupation history is limited to physical work and his education is limited to high school, the Board finds that referral to the Director, Compensation and Pension Service is warranted for consideration of an extra-schedular evaluation under the provisions of 38 C.F.R. § 4.16(b) (2013). Therefore, the issue of entitlement to a TDIU must be remanded to the AOJ so that it may refer this claim to the Director of Compensation and Pension Service for extra-schedular consideration. Accordingly, the case is REMANDED for the following action: 1. Refer to the Director, Compensation and Pension Service, consideration of entitlement to TDIU on an extraschedular basis. Include with that referral a full statement as to the Veteran's service-connected disabilities, his employment history, his educational and all other factors having a bearing on this issue. 2. If the benefit sought is not granted in full, provide the Veteran and his representative with a supplemental statement of the case, allow an appropriate opportunity for reply, and then return the matter to the Board, if in order. The Veteran has 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 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). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).