Citation Nr: 1605826 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 04-30 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Atlanta, Georgia, Department of Veterans' Affairs (VA) Regional Office (RO), which granted an increased rating to 30 percent for PTSD, effective April 29, 2002. The Veteran appealed, stating he warranted a higher evaluation. In March 2008, the RO granted a 50 percent evaluation, effective May 5, 2000. The Veteran stated he wanted an evaluation in excess of 50 percent. In conjunction with the increased rating claim, Social Security Administration (SSA) records were associated with the claims file, which contained a determination that the Veteran is unable to work in part due to PTSD. By Board decision dated May 2011, the Board denied an increased rating for PTSD but found the issue of entitlement to TDIU was raised again by the SSA evidence and remanded the issue of TDIU for additional development by the RO. The Board notes that in a February 2005 rating decision, the RO denied entitlement to a total rating for compensation based upon individual unemployability. The Veteran did not appeal the decision. In July 2009, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge in regard to his increased rating claim for PTSD. A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2014). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2014). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements 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 service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014). In this case, the Veteran is service connected for PTSD at 50 percent, tinnitus at 10 percent, and bilateral hearing loss and bilateral dermatophytosis of the feet at noncompensable. The Veteran's combined evaluation for compensation is 60 percent. Therefore, while the Veteran's PTSD is over 40 percent, his combination does not reach 70 percent. As such, the Veteran does not qualify for TDIU on a schedular basis at the present time. As noted, the Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. As such, a remand is required to refer the case for an evaluation of extraschedular rating. Further, the Board finds a VA examination to assess the functional impairment caused by the Veteran's service-connected disabilities, including PTSD, necessary in evaluating the claim. Finally, the May 2011 Board decision ordered that the Veteran be issued a letter consistent with the notice requirements of 38 C.F.R. § 3.159(b) as to the TDIU claim. This letter was sent to the Veteran in June 2011; however, the Veteran did not respond. The AOJ will be asked to re-send this letter to the Veteran to allow him an additional opportunity to respond. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be issued a letter consistent with the notice requirements of 38 C.F.R. § 3.159(b) as to the TDIU claim. This letter must address the criteria for entitlement to TDIU, the types of evidence that may establish the benefit, the relative duties of VA and a claimant in obtaining such evidence, and VA's practices in assigning disability ratings and effective dates for those ratings. 2. Then, the RO or the AMC should forward the Veteran's claims file to an appropriate examiner to provide an opinion with respect to the Veteran's employability. The Veteran's claims file, including any pertinent evidence contained in electronic files, should be forwarded to the examiner for review in conjunction with the examination, and the examiner should indicate it has been reviewed. In the report of the examination, the examiner should assess the functional impairment caused by the Veteran's service-connected disabilities, either singularly or jointly, on his ordinary activities, to include his employability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. Particular attention is directed to the Veteran's service-connected PTSD. Please note that tinnitus and bilateral hearing loss are also service connected. The examiner should offer a complete rationale for any opinions that are expressed and should cite the appropriate evidence to support his or her conclusions. 3. Refer the claim for TDIU to the Director, Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321. 4. Then, after conducting any additional development deemed warranted, the claim for entitlement to TDIU must be adjudicated to include consideration of whether an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b) is appropriate. If the determination is unfavorable, he and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. 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). _________________________________________________ A. C. MACKENZIE Acting 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).