Citation Nr: 1609991 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 08-32 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This claim was last before the Board in September 2014 at which time the Board found that the issue of entitlement to a TDIU had been raised by the record on a derivative basis as part of the Veteran's increased rating claim for a left knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). At that time the Board remanded the claim so that proper notice and an examination could be provided and so that the issue could be adjudicated by the RO. The case is now returned for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is unemployable due to his service-connected bilateral knee disabilities. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. Id. The Veteran is currently service-connected for the following disabilities: (i) postoperative residuals right knee with instability, rated as 10 percent disabling; (ii) degenerative arthritis left knee, rated as 10 percent disabling; (iii) degenerative arthritis right knee, rated as 10 percent disabling; and (iv) complex tear of the lateral meniscus of the left knee, rated as 10 percent disabling. These disabilities combine to a 40 percent rating. As noted above, for the purpose of a TDIU analysis, disabilities of one or both lower extremities are to be treated as one disability. See 38 C.F.R. § 4.16(a)(1). Thus, the Veteran has one disability rated as 40 percent disabling, and the criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met. Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU 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. 38 C.F.R. §4.16(b). In the present case, there is evidence that suggests that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected knee disabilities. See 38 C.F.R. §§ 3.340, 4.16(b). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, 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. Here, the record reflects that the Veteran last worked as a sound and communication technician for the Miami-Dade County Public Schools, a job that is classified as "medium-heavy" work. See May 2007 Correspondence. The Veteran's employer wrote in May 2007 that the Veteran's ability to climb, stoop, stretch, walk, and stand for sustained periods, as required in his job description, has declined noticeably, and his "inability to perform his stated physical requirements is currently under review by upper level management." Private treatment records from 2007 show that the Veteran was placed on work restrictions on several occasions due to his left and right knee disabilities. The May 2007 VA examiner found that the Veteran's bilateral knee condition "does interfere with his work as a sound and communication technician where he has to climb ladders and kneel on his knees and crawl." The July 2012 VA examiner recorded that the Veteran had to retire in April 2010 "due to bilateral knee; [he] could not stoop, kneel." The Board remanded this case in September 2014 in order to obtain an opinion regarding the occupational effects of the Veteran's knee disability. The Veteran was afforded a VA examination in March 2015. The Veteran reported that his previous job involved wiring electronics, which involved bending, crawling, and other physical exertion. The Veteran indicated that he quit working in 2010 as a result of his back and knee conditions. The Veteran also reported that his knee disabilities result in difficulty with climbing stairs, bending, lifting heavy loads from the ground, and prolonged standing. He also indicated that he is unable to run. After examination, the examiner opined that the Veteran "is unable to do heavy work, excessive bending, squats, or prolonged sitting." The examiner indicated that the Veteran "would have difficulty doing his prior job which involved extensive bending, lifting, crawling, and prolonged standing at times." The examiner also opined that the Veteran "is able to do light duty/sedentary work." Based on these facts, it appears that the Veteran may be unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, referral to the Director, Compensation Service, for consideration of entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(b). The Board also notes that as part of its remand instructions, the Veteran was asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran did not complete and return this form. As the case is being remanded, the Veteran should again be asked to complete a VA Form 21-8940 in order to obtain relevant education and employment information and to authorize VA to contact his previous employers for additional information regarding his employment. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Thereafter, forward this case to the Director, Compensation Service for consideration of the assignment of a TDIU on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b) (2015). In connection with the referral, the RO/AMC should include a full statement outlining the Veteran's service-connected disability, employment history, educational attainment, and all other factors having a bearing on the issue during the applicable timeframe. 3. After completion of the above, ensure that all development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claim for a TDIU (to include consideration of the provisions of 38 C.F.R. § 4.16(b) if the schedular criteria remain unmet). If the benefit sought remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned 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 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). _________________________________________________ TANYA SMITH 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).