Citation Nr: 1542318 Decision Date: 09/30/15 Archive Date: 10/05/15 DOCKET NO. 13-31 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis prior to May 13, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1964 to March 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. By that rating action, the RO, in part, denied the Veteran's claim of entitlement to TDIU. The Veteran appealed this determination to the Board. In September 2014, the Veteran testified before the undersigned at a hearing conducted at the above RO. A copy of the hearing transcript has been associated with the Veteran's electronic record. During the hearing, the Veteran submitted a VA social worker's statement in support of his claim along with a waiver of initial RO consideration. In addition, the undersigned held the record open for 30 days to permit the Veteran to submit additional evidence in support of his claim. Thereafter, he submitted additional private and VA treatment records, along with a waiver of initial RO consideration. Thus, a remand to have the RO initially consider this evidence in the first instance is not required. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Board finds that prior to further appellate review of the claim, additional substantive development is necessary; specifically, to obtain outstanding VA treatment records and to schedule the Veteran for a VA examination with an opinion that addresses the effect his service-connected disabilities have on his ability to secure substantially gainful employment. The Board will discuss each reason for remand separately below. i) VA Records The Veteran testified that he had continued to seek treatment for his PTSD, a service-connected disability that he claims renders him unemployable, at the Vet Center in Morgantown, West Virginia. (Transcript (T.) at page (pg. 13)). The Veteran also testified that he had sought treatment at the VA Medical Center (VAMC) in Clarksburg, West Virginia. (T. at pg. 2). While records from the latter VAMC dated through April 2014 are of record, more recent reports are absent. As outstanding treatment records from the above-cited VA facilities might contain evidence addressing the effect that the Veteran's PTSD, as well as his other service-connected disabilities, have on his ability to maintain substantially gainful employment, they should be secured on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 U.S.C.A. § 5103A(b)(1) (West 2014); 38 C.F.R. § 3.159(c)(1) (2015). ii) VA examination The Veteran contends that he is unable to secure and maintain substantially gainful employment because of outbursts, fatigue and constant ringing and "chirping" associated with his service-connected PTSD, coronary artery disease (CAD) and tinnitus, respectively. The Veteran's service-connected disabilities include: CAD, evaluated as 60 percent disabling from November 30, 2009; PTSD evaluated as 50 percent disabling from March 13, 2011; tinnitus, evaluated as 10 percent disabling from June 3, 2011; and, bilateral hearing loss, evaluated as noncompensably disabling from June 3, 2011. The Veteran's combined evaluations for compensation were 60 percent from November 30, 2009 and 80 percent from May 13, 2011. In this case, there are several private and VA reports that discuss the effect of his service-connected disabilities, notably his CAD and hearing loss, on his ability to maintain employment and daily functioning. In a May 2011 statement, the Veteran's treating physician, Dr. P. H., opined that he had advised the Veteran not to work because of his "multiple medical problems." Dr. P. H. did not elaborate or comment on the specific medical problems that affected the Veteran's ability to work. (See May 2011 statement, prepared by Dr. P. H.) At the close of an April 2012 VA hearing loss and tinnitus examination, the Veteran indicated that his hearing loss and tinnitus had made it difficult to hear in a group setting and caused irritability, respectively. The VA examiner did not discuss functional effects of the service-connected disabilities relative to the Veteran's ability to secure and maintain substantially gainful employment. (See April 2012 VA hearing loss and tinnitus examination report). At the close of an April 2012 PTSD examination, the VA examiner determined that the Veteran's PTSD had caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. (See April 2012 VA PTSD examination report). In January 2013, after an examination of the Veteran and review of his electronic record, to include VA treatment records, a VA examiner concluded that the Veteran's dyspnea and fatigue that he endured with brisk walking would cause moderate impairment (italics added for emphasis) in performing physical labor (the Veteran was a laborer for 40 years prior to his retirement in 2006). The VA examiner also maintained that the Veteran's CAD would not prevent him from performing sedentary labor. (See January 2013 VA General Medical examination report). Also. in January 2013, a VA audiologist reviewed the Veteran's electronic record and opined that he would have difficulty communicating in a noisy environment as a result of his service-connected bilateral hearing loss, but that it would not render him unable to secure and maintain gainful employment. (See January 2013 VA audiologist report). Finally, in a September 2014 statement, a VA social worker opined that the Veteran's PTSD had continued to cause a significant impact and impairment on his daily life. The VA social worker did not provide a specific conclusion as to the functional effects of PTSD relative to the Veteran's ability to secure and maintain gainful employment. (See September 2014 VA social worker's statement). In light of Dr. P. H.'s statement that he had advised the Veteran not to work due to his "multiple medical disabilities" and the September 2014 VA social worker's recent statement that the Veteran's PTSD had caused a significant impact and impairment on his daily life, presumably to include his employment, the Board finds that it cannot fairly adjudicate the claim without obtaining an adequate medical opinion regarding the effects of his service-connected disabilities, together, on his ability to secure or follow substantially gainful employment. In addition, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) prior to May 13, 2011. Nevertheless, 38 C.F.R. § 4.16(b) provides that when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), such case may be considered for extra-schedular consideration under 4.16(b). As the Board itself cannot assign an extra-schedular rating on the basis of TDIU, in the first instance; it must first specifically determine whether to refer a case to the Director of Compensation and Pension Service for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. 38 C.F.R. § 4.16(b). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. Thus, entitlement to TDIU, to include on an extraschedular basis prior to May 13, 2011 must be considered. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA treatment records, to include those from the Vet Center in Morgantown, West Virginia and Clarksburg, West Virginia VAMC, dated from April 2014 to the present. All efforts to obtain these records must be documented in the Veteran's electronic record. If these records cannot be obtained, this must be clearly documented in the record. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo a VA examination, by an appropriate examiner. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should comment on the functional effects of the Veteran's service-connected disabilities (CAD, evaluated as 60 percent disabling from November 30, 2009; PTSD evaluated as 50 percent disabling from March 13, 2011; tinnitus, evaluated as 10 percent disabling from June 3, 2011; and, bilateral hearing loss, evaluated as noncompensably disabling from June 3, 2011) relative to his ability to secure or follow a substantially gainful occupation for which his education and experience would qualify him. The examiner should not discuss or mention age or nonservice-connected disabilities. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 3. Upon completion of the foregoing, the claim should be readjudicated, to include consideration of whether TDIU on an extraschedular basis prior to May 13, 2011 is warranted. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case that addresses all evidence received after issuance of a July 2009 Statement of the Case. 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). _________________________________________________ BARBARA B. COPELAND 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) (2015).