Citation Nr: 1522196	
Decision Date: 05/26/15    Archive Date: 06/11/15

DOCKET NO.  13-02 225	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Mike A. Sobiecki, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1969 to February 1971.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA).

In his January 2013 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge but in March 2013 he withdrew his request. 


REMAND

The Veteran claims that his service-connected disabilities prevent substantially gainful employment, warranting a TDIU rating.  See 38 C.F.R. § 4.15 (2014).  He is currently service-connected for degenerative disc disease, lumbosacral spine (rated at 10 percent prior to July 26, 2011, and at 20 percent thereafter); radiculopathy, left lower extremity (rated at 20 percent from July 26, 2011); and radiculopathy, right lower extremity (rated at 20 percent from July 26, 2011).  His combined disability rating is 10 percent prior to July 26, 2011, and 50 percent thereafter.  Based on these ratings, the Veteran does not meet the percentage standards for a TDIU rating set forth in 38 C.F.R. § 4.16(a); nonetheless, he is still eligible for an extraschedular consideration of a TDIU rating pursuant to 38 C.F.R. § 4.16(b).  

In April 2012, the Veteran submitted an application for increased compensation based on unemployability.  He reported that he has been unemployed since October 1988 due to his service-connected disabilities.  Prior to that point he had been working in construction.  He noted that his back disability and associated radiculopathy requires him to use a back brace, a cane, and pain medications on a daily basis.  In regards to education, he wrote that he has completed his GED and he checked a box indicating that he has completed one year of college.  

In April 2012, the Veteran also underwent a VA examination.  He reported that his back pain began in the 1970s after an in-service accident in Korea.  He experiences sharp pain constantly.  He wears a back brace constantly and the pain runs down both legs.  He uses prescription medications to help alleviate the pain.  He does not drive an automobile due to the pain and his use of pain medications.  He was hospitalized in March 2012 for severe back pain.  

After examining the Veteran, the examiner opined on the functional impact of his service connected lumbosacral arthritis and associated lower extremity radiculopathies.  He stated that due to these disabilities, the Veteran is unable to sit or stand for prolonged periods of time, he is unable to climb ladders, twisting, turning, and lifting cause additional back pain, and he cannot lift more than 20 pounds or lift any amount of weight repetitively.

The Board cannot award a TDIU pursuant to section 4.16(b) in the first instance-the RO must have previously submitted the claim to the Director of Compensation for extraschedular consideration.  See Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  As the record does not indicate that the RO did submit the claim for such consideration, remand is warranted.

Accordingly, the issue is REMANDED for the following actions:

1.  Refer the claim of entitlement to TDIU to the Compensation Service Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b).

2.  Finally, readjudicate the issue remaining on appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.

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).



_________________________________________________
	M. N. HYLAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, 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).