Citation Nr: 1342219 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-38 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active service from March 2005 to September 2008. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. 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 The Veteran is seeking total disability based on individual unemployability (TDIU). VA regulations provide a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). In this case the Veteran is currently assigned a 50 percent rating for his service-connected post-traumatic stress disorder (PTSD), a 10 percent rating for his service-connected chronic low back strain, a 10 percent rating for his service-connected tinnitus, and a noncompensable rating for service-connected chondromalacia in both knees, for a total combined rating of 60 percent. As such, the Veteran does not meet the schedular criteria for a TDIU rating. However, VA regulations also provide that veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular standards of section 4.16(a) may be referred to the Director, Compensation and Pension Service, for extra-schedular consideration of TDIU. 38 C.F.R. § 4.16. In this case the Board finds the Veteran's VA treatment records, specifically the record from September 2010, provide evidence the Veteran is currently unemployable due to his service-connected disabilities. This psychologist noted the Veteran had been unable to find substantially gainful employment since separation from service despite repeated attempts. The Veteran did state he was currently working as a security guard for an apartment complex in exchange for housing but does not receive any wages. This work in exchange for housing may constitute "marginal employment" under VA regulations and therefore not considered substantially gainful employment. 38 C.F.R. § 4.16. This VA psychologist also noted the Veteran's "relatively sparse" work history and unsuccessful attempts to attend college. She then opined, "The Veteran's current PTSD symptoms are heightened enough that new attempts at both employment and vocational training may not be successful at this time." The Board finds this record therefore contains some evidence that the Veteran is unable to secure and follow substantially gainful occupation due to his service-connected PTSD even though he does not meet the schedular requirement for TDIU. Accordingly referral to Director, Compensation and Pension Service for extra-schedular consideration is warranted. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim to the Director, Compensation and Pension Service, for consideration of an extra-schedular TDIU award. This referral should include a full statement of the Veteran's service-connected disabilities, employment and educational history, and medical evaluations, including the September 2010 VA treatment record. 2. Then, readjudicate the appeal. If the claim remains denied provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ JOHN J. CROWLEY 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).