Citation Nr: 1342387 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-36 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The RO originally characterized and adjudicated the issue on appeal as whether or not new and material evidence had been submitted to reopen the claim of entitlement to a TDIU. However, the United States Court of Veterans Claims has held that a TDIU claim is part and parcel of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Because an increased rating claim does not require the submission of new and material evidence to open a claim, no new and material evidence is necessary to reopen the claim on appeal. Moreover, the RO reopened the claim of entitlement to a TDIU in the June 2009 rating decision. Therefore, the Board has characterized the claim as shown on the title page. 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 Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 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 or more. 38 C.F.R. § 4.16(a) (2013); see also 38 C.F.R. §§ 3.340, 3.341 (2013). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). The record does not show that the Veteran underwent a VA examination specifically in connection with his claim of entitlement to a TDIU. In October 2005, the Veteran underwent VA examination with respect to his claim of entitlement to an increased disability rating for his service-connected nephritis and dermatophytosis. The report shows the VA examiner was also instructed to comment on the effects of those particular service-connected disabilities on the Veteran's employability. The VA examiner found that based on the clinical picture of the Veteran's polyneuropathy, there was no criteria for unemployability. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the VA examiner did not provide a rationale for the negative opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). More importantly, the VA examiner did not address the Veteran's other service-connected disabilities. An adequate examination for VA purposes requires that the VA examiner address all of the Veteran's service-connected disabilities and provide an opinion as to whether the Veteran's service-connected disabilities, alone or in combination, prevented him from securing or following a substantially gainful occupation. As a result, the Board finds remand is warranted for a VA examination to include consideration of all of the Veteran's service-connected disabilities for purposes of determining entitlement to a TDIU. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Notably, the Veteran does not meet the minimum criteria for a TDIU prior to October 30, 2008. However, 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. 38 C.F.R. § 4.16(b). Rating boards are required to submit to the Chief Benefits Director or Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Chief Benefits Director or Director, Compensation and Pension Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, if the RO/AMC finds the Veteran was unemployable by reason of his service-connected disabilities prior to October 30, 2008, the Veteran's claim should be submitted to the Chief Benefits Director or Director, Compensation and Pension Service, for consideration of whether a TDIU on an extraschedular basis is warranted for the period prior to October 30, 2008. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all VA treatment records dated from June 2010 to the present for the Veteran from the VA Medical Center in San Juan, the Commonwealth of Puerto Rico, along with records from all associated outpatient clinics. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran should be notified in writing. 2. Schedule the Veteran for an evaluation by a VA vocational rehabilitation specialist to determine the effect of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation. The claims file should be made available for review. The vocational rehabilitation specialist must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the evidence, the specialist should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities, alone or in combination, preclude him from securing and following a substantially gainful occupation consistent with his education and occupational experience. This opinion must be provided without consideration of either the Veteran's nonservice-connected disabilities or age. The specialist should note that the Veteran is currently service-connected for glomerulonephritis with arterial hypertension; diabetes mellitus type II; peripheral neuropathy, bilateral lower extremities; peripheral neuropathy, bilateral upper extremities; chronic dermatophytosis of the toes; and erectile dysfunction. A complete rationale for any opinion advanced must be provided. 3. Notify the Veteran that he must report for the examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. Thereafter, re-adjudicate the Veteran's claim of entitlement to a TDIU. If the evidence demonstrates that the Veteran was unemployable by reason of his service-connected disabilities prior to October 30, 2008, refer the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of whether a TDIU on an extraschedular basis is warranted prior to October 30, 2008. Include 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 this issue. See 38 C.F.R. § 4.16(b). If the benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).