Citation Nr: 1604742 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 10-12 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from February 1982 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This matter was before the Board in September 2012. At that time, the Board remanded the Veteran's claim for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The file contains a November 2015 notice of disagreement concerning issues of rating reductions of the Veteran's service-connected low back disability and radiculopathy of the lower extremities. However, the Board finds that, due to significant distinguishing features, a remand for issuance of a statement of the case, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), is not warranted. In Manlincon, the RO failed to construe a communication as a notice of disagreement with respect to an issue denied in the same rating decision as the issue developed for appeal. Subsequent development of the appeal had continued to ignore the notice of disagreement. In contrast, in the instant case, the RO has taken appropriate action on the November 2015 notice of disagreement, to include communicating with the Veteran regarding her November 2015 notice of disagreement, sending the Veteran a letter which described the Decision Review Officer (DRO) process. It would be premature for the Board to accept jurisdiction simply to remand for a statement of the case before all RO actions are completed in preparation for said statement of the case. This is especially true in a case such as this where, unlike in Manlincon, the RO is appropriately developing the case. Hence, a remand for the RO to accomplish actions which are already in process is not warranted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, another remand is necessary for further evidentiary development of the Veteran's appeal for entitlement to a TDIU. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 4.16(a) (2015). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration of all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educations and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In its September 2012 remand, the Board noted that the Veteran did not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) at that time. The Board referenced evidence showing that the Veteran's ability to work had been affected by her service-connected spine disability since approximately 2007. Accordingly, the Board remanded the Veteran's claim for additional development, including the directive to refer the Veteran's claim to the Director of Compensation and Pension Services for consideration of assignment of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). The claim was never referred to the Director of Compensation and Pension Services for consideration. Therefore, a remand is necessary to ensure compliance with the portion of the September 2012 remand that directed that the Veteran's claim be referred to the Director of Compensation and Pension Services for extraschedular consideration. Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The Board notes that the Veteran eventually did meet the schedular requirements for TDIU. As of May 15, 2014, the Veteran has been in receipt of a combined disability rating of 70 percent, with at least one disability rated 40 percent disabling. The Board notes that the RO decreased the Veteran's 40 percent disability ratings for her low back disability and left lower extremity radiculopathy in a July 2015 rating decision, effective May 31, 2015. However, in the same rating decision, the RO granted service connection for a depressive disorder, and assigned a rating of 50 percent, effective May 5, 2015. The Board notes that the Veteran filed a notice of disagreement with this rating decision, and the rating reductions are presently in appellate status. Regardless, the Veteran has met the schedular criteria for a TDIU since May 25, 2014. There is no medical opinion of record that addresses whether the Veteran's service-connected disabilities during this portion of the appeal rendered her unable to secure or follow substantially gainful employment. Such an opinion must be obtained. Last, during a June 2013 VA examination for the Veteran's back, the Veteran indicated that she had applied for disability benefits from the Social Security Administration. This indicates that there may be relevant records in the possession of the Social Security Administration. However, the record does not include any administrative or medical documents held by the Social Security Administration or evidence of VA's attempt to procure such documents. On remand, attempts must be made to obtain any relevant records associated with any claim for disability benefits administered by the Social Security Administration and associate any obtained records with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant administrative and medical records associated with any claim by the Veteran for disability benefits from the Social Security Administration regardless of whether the claim was granted. Associate any obtained records with the claims file. If no records are obtained, obtain a negative reply and associate such reply with the claims file. 2. After any obtained Social Security Administration records are associated with the claims file, ensure that the Veteran is schedule for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist with respect to the Veteran's TDIU claim. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiners must annotate their report as to whether the claims file was reviewed. (a) The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that her service-connected disabilities, alone or in the aggregate, impacted her occupational functioning, i.e., rendered her unable to secure or follow a substantially gainful occupation prior to May 25, 2014. During this time period the Veteran was service-connected for a low back disability and left lower extremity radiculopathy. (b) The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that her service-connected disabilities, alone or in the aggregate, impacted her occupational functioning, i.e., rendered her unable to secure or follow a substantially gainful occupation after May 25, 2014. During this time period the Veteran was service-connected for a low back disability, right leg radiculopathy, left leg radiculopathy, and depression. In offering these impressions, the examiner must acknowledge and take into account the Veteran's education, training, and work history. All findings and conclusions should be set forth in a legible report, accompanied by a rationale. 3. After all other requested development has been completed, refer the claim of entitlement to TDIU to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of whether TDIU on an extraschedular basis is warranted prior to May 25, 2014, the period during which the Veteran did not meet the schedular criteria for a TDIU. 4. After the development requested has been completed, review the medical report to ensure that it is in compliance with the directives of this Remand. If the report is deficient in any manner, implement corrective procedures. 5. Then, readjudicate the claim on appeal. If the benefit sought is not granted in full, provide the Appellant and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board. 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). _________________________________________________ GAYLE E. STROMMEN 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).