Citation Nr: 1520961 Decision Date: 05/15/15 Archive Date: 05/26/15 DOCKET NO. 13-21 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1979 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Buffalo, New York. In June 2014, the Veteran testified in Washington, D.C., before a Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The issues of service connection for a psychiatric disability and disabilities of the bilateral hips and spine have been raised by the record during the Veteran's June 2014 Board hearing, 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. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Total disability will be considered to exist 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 (2014). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). In the present case, the Veteran has been granted service connection for subluxation of the right knee, with a 30 percent disability rating, for subluxation of the left knee, with a 20 percent rating, for a right knee strain, with a 10 percent rating, and for a left knee strain, with a 10 percent rating. His combined rating is 60 percent. Upon receipt of his claim, he was afforded a February 2012 VA orthopedic examination. The examiner opined that the Veteran's bilateral knee disabilities functionally impaired his work as a plumber, but did not otherwise indicate whether all forms of gainful employment were prohibited. As such, remand is required to address the inadequacy of this opinion. Accordingly, the case is REMANDED for the following action: 1. Request any pertinent medical records not already received from the Norfolk/Virginia Beach VA Community-Based Outpatient Clinic, as well as any other VA, or private facility at which the Veteran has received pertinent medical treatment. If no records are available, that fact should be noted for the record. 2. Schedule the Veteran for an examination to determine if the aggregate effects of the Veteran's service-connected disabilities precludes him from securing and following all forms of substantially gainful employment in light of his history of work as a construction project manager, internet advertising and four years of college education. In rendering an opinion, the examiner should note that the Veteran has been granted service connection for bilateral knee strains and subluxation of the bilateral knees. The claims folder must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. A clear rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board 3. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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 2014). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).