Citation Nr: 1533181	
Decision Date: 08/04/15    Archive Date: 08/11/15

DOCKET NO.  12-16 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to a total rating based on individual unemployability (TDIU) 


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Ashley Martin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1969 to April 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. 

The Veteran had a hearing before the Board in November 2014 and the transcript is of record.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran alleges that he is entitled to TDIU due to his service-connected disabilities.  Prior to June 5, 2014, the Veteran was in receipt of a 50 percent rating for PTSD and a 10 percent rating for coronary artery disease, with a combined rating of 55 percent.  As the Veteran's combined evaluation was less than 70 percent, he did not meet the preliminary schedular criteria for a TDIU prior to June 5, 2014.  38 C.F.R. § 4.16(a).

When the percentage requirements set forth in 38 C.F.R. § 4.16(a) are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history.  38 C.F.R. § 4.16(b).  Such cases should be referred to the Director of Compensation and Pension Service, for extraschedular consideration.  38 C.F.R. § 4.16(b).

In this instance, SSA records provide some support for the Veteran's assertions that his service-connected disabilities, particularly his PTSD, preclude substantially gainful employment.  The records show that that the Veteran is in receipt of SSA disability benefits for PTSD and bipolar disorder, with a disability onset of September 2011.  Furthermore, in a February 2012 functional assessment, a SSA provider found that the Veteran is incapable of the basic mental demands of unskilled work.  In providing this opinion, the provider considered the severity of the Veteran's symptoms and referred to a January 2012 statement from Dr. S.K., where he opined that the Veteran does not have the emotional capability to be employed in a manner that would allow him to earn a substantial wage.  The SSA provider's opinion suggests that the Veteran may be unemployable by his service connected PTSD.  Thus, entitlement to an extraschedular rating under 38 C.F.R. § 4.16(b) for the time period prior to June 5, 2014 must be addressed in the first instance by the Director of Compensation and Pension Service.

The Board notes that the Veteran meets the percentage requirements set forth in 38 C.F.R. § 4.16(a) from June 5, 2014.  However, this issue will be deferred pending the determination by the Director of Compensation and Pension Service. 

Accordingly, the case is REMANDED for the following actions:

1. Refer this matter to the VA Director of Compensation and Pension for consideration of entitlement to an extraschedular rating under 38 C.F.R. § 4.16(b) for the time period prior to June 5, 2014.  In connection with the referral, the RO should include a full statement outlining the Veteran's service connected disabilities, employment history, educational attainment and all other factors bearing on the issue, including the grant of SSA benefits.

2.	Thereafter, readjudicate the claim.  If the benefit sought remains denied, issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant 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 2014).



_________________________________________________
MICHAEL MARTIN
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).