Citation Nr: 1342940 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-19 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to total disability benefits due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1983. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to TDIU benefits. The appeal is REMANDED to the RO. REMAND The Veteran is service-connected for migraine headaches, rated 50 percent, and lumbar spine arthritis, rated 20 percent. The Veteran's combined disability rating is 60 percent. 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 (2013). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31 (1994). A total disability rating for compensation may be assigned when 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 at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2013). The Veteran has a combined disability rating of 60 percent and, therefore, she does not meet the criteria of 38 C.F.R. § 4.16(a). However, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but does not meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the case shall be submitted for consideration for assignment of a TDIU pursuant to 38 C.F.R. § 4.16(b) (2013). Pursuant to the Board's October 2012 Remand, the Veteran received a VA examination addressing the effects of her service-connected disabilities on her ability to obtain or follow substantially gainful employment. In December 2012, after examining the Veteran, a VA examiner opined that the Veteran's spine and headache disabilities would impact her ability to work. The examiner opined that the Veteran's headache disability left her capable of performing sedentary and light-duty work, with no lifting over 10 pounds. The examiner indicated that the Veteran might need to leave work during severe migraine headaches. The examiner opined that the Veteran's spine condition would render her incapable of performing either sedentary or physical work, due to her need for ongoing narcotic pain medications and the associated risk of falling and sustaining injuries. Following that examination a March 2013 supplemental statement of the case issued by the RO continued the denial of a TDIU, considering only whether the Veteran was entitled to a TDIU pursuant to 38 C.F.R. § 4.16(a). However, considering the opinion rendered by the December 2012 examiner, consideration must additionally be given to whether the Veteran is entitled to a TDIU pursuant to 38 C.F.R. § 4.16(b). As a result, a referral of the claim to the Director of the VA Compensation and Pension Service for consideration is warranted. The authority to assign TDIU ratings pursuant to 38 C.F.R. § 4.16(b) has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance. 38 C.F.R. § 4.16(b) (2013). Accordingly, the case is REMANDED for the following actions: 1. Refer the claim for a TDIU under 38 C.F.R. § 4.16(b) to the appropriate department officials for a written decision that explains the reasons and bases for the conclusion reached. 2. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). _________________________________________________ Harvey P. Roberts 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) (2013).