Citation Nr: 1340915 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 03-09 143 ) 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 due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2006, August 2007, September 2009, February 2011 and September 2012, the Board remanded the claim for further development. The issues of entitlement to service connection for depression, a heart disability, headaches and reflux/gastritis and entitlement to earlier effective dates for the award of service connection for the lumbar spine and sciatica have been raised by the record, but 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 Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is service-connected for degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling; radiculopathy of the right lower extremity, evaluated as 10 percent disabling; and degenerative joint disease of the cervical spine, evaluated as 30 percent disabling. The combined disability evaluation for the Veteran's disorders is 60 percent. The schedular threshold for TDIU has not been met. 38 C.F.R. §§ 4.16, 4.25. Consideration of an award of TDIU must also take into account whether a TDIU is warranted on an extraschedular basis. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v Principi, 15 Vet. App. 1 (2001). Even though a November 2012 VA opinion finds the Veteran may be capable of sedentary employment, with limitations on lifting objects greater than 10 pounds and sitting and moving around at his discretion, the Board must also consider whether such residual employment is consistent with his prior work experience and education. The Veteran has reported that he has a 9th grade education and that from 1971 to 1999, his only work experience is in maintenance. See October 2007 VA Form 21-8940. Given the evidence of record and the provisions of 38 C.F.R. § 4.16(b), a remand is necessary to allow the AOJ to submit the Veteran's claim to the Director of Compensation and Pension for a determination as to whether a TDIU should be awarded on an extraschedular basis. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's TDIU claim to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue must be provided. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim for a TDIU based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, provide him and his representative with a supplemental statement of the case. Allow an appropriate period of time for response. The appellant 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 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).