Citation Nr: 1509488 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 05-37 639 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Santiago, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. That decision, in relevant part, denied entitlement to a TDIU. In January 2008, the Board remanded the TDIU claim, which was determined to be intertwined with a bilateral knee claim, for additional development of the evidence. After accomplishing further action, the RO continued to deny the claims, as reflected in a September 2010 supplemental statement of the case (SSOC), and returned those matters to the Board for further appellate consideration. In January 2011, the Board denied the claim of service connection for a bilateral knee disability, and remanded the TDIU claim for further evidentiary development. The RO continued to deny the TDIU claim, as reflected in the April 2014 SSOC, and returned that matter to the Board for further appellate consideration. In June 2014, the Board remanded the TDIU claim for further development, and the claim is once again before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the June 2014 remand directives, the Board instructed the AOJ to obtain a VA opinion addressing the impact of the Veteran's service-connected PTSD on his employability. The directives specifically requested that the VA examiner opine as to whether it is at least as likely as not that the Veteran's service-connected PTSD renders him unable to obtain or retain gainful employment. The Veteran was afforded a VA examination in August 2014. The VA examiner stated that she could not opine on whether or not a veteran is unemployable, citing a VA Fast Letter regarding TDIU dated June 17, 2013. However, the examiner reported that the Veteran's ability to maintain employment could be compromised by his mental health symptoms, stemming from all of his diagnoses, which (besides PTSD) include cannabis dependence, alcohol use disorder, and stimulant use disorder. The examiner also reported that "part of [the Veteran's] current impairment should be attributed to all three of these diagnoses, although impairment attributable to each of these diagnoses cannot be disaggregated from each other or from that stemming from all other mental health disorders" without undue speculation. The Board notes that in a January 2015 brief, the Veteran's representative argued that the inability to separate the manifestations attributable to PTSD from the symptoms of the nonservice-connected psychiatric conditions means that such manifestations/symptoms must be attributed to the service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998). The VA examiner's report concludes that the Veteran's ability to maintain employment could be compromised by his mental health symptoms stemming from all of his diagnoses. The Board notes that the Veteran's only service-connected disability is PTSD, rated as 50 percent disabling, which does not meet the minimum schedular requirement for a TDIU. See 38 C.F.R. § 4.16(a) (2014). Because the examiner could not distinguish the impairment caused by the Veteran's service-connected PTSD from the impairment caused by the nonservice-connected psychiatric diagnoses and because the Veteran's service-connected disability does not meet the minimum requirements for schedular consideration of a TDIU, the Board finds that the claim must be remanded for referral to the Director of Compensation and Pension as extraschedular consideration of a TDIU is warranted. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In light of the remand, relevant ongoing VA treatment records should also be requested. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Request updated VA treatment records dated from February 2015 to the present. 2. After associating the above records, if any, with the claims file, refer to the Veteran's claim for entitlement to a TDIU to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. A copy of the decision must be included in the claims file. In evaluating the claim, consider the August 2014 VA examiner's diagnoses of moderate cannabis dependence, severe alcohol use disorder, severe stimulant use disorder, PTSD with panic attacks, and unspecified depressive disorder and finding that "impairment attributable to each of these diagnoses cannot be disaggregated from each other or from that stemming from all other mental health disorders." See Mittleider v. West, 11 Vet. App. 181 (1998). 3. Finally, after the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed, and the claim should be readjudicated. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a SSOC and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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 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 2014). _________________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).