Citation Nr: 1623284 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 10-06 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran's claim for TDIU was previously denied in a February 2008 rating decision. The Veteran's February 2009 claim was characterized as one for reopening based on new and material evidence. The Board notes that a claim for TDIU is generally treated as one for increased compensation, and as such, reopening requirements of new and material evidence are not necessary. See Hurd v. West, 13 Vet. App. 449 (2000) (claims for TDIU are treated as claims for increased compensation when determining effective dates). As such, the claim has been characterized as set forth on the title page of this decision. The Board remanded this matter in July 2014 for additional development. Such has been completed and this matter is returned to the Board for further consideration. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks assignment of TDIU. Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability 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). It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). In this instance, the Veteran does not meet the schedular criteria for an award of TDIU, presently having a total combined disability rating of only 50 percent. 38 C.F.R. § 4.16. During the pendency of this appeal his lone service connected disability prior to February 17, 2010 was his lumbar spine disorder of degenerative disk disease (DDD), which was rated at 20 percent disabling. Per an April 2010 rating decision he was granted a 40 percent rating for his lumbar spine disorder and also was granted service connection for an associated radiculopathy of the left lower extremity with a 10 percent rating assigned; the effective date for both these ratings was February 17, 2010. As of that date, his combined rating for his service connected lumbar spine disability and radiculopathy was 50 percent. Such disability is due to a single disability as the radiculopathy stems from the same body system being a neurological manifestation of his lumbar spine disease. 38 C.F.R. § 4.16(a). However it is less than 60 percent and does not meet the schedular criteria for TDIU. The Veteran's claim of entitlement to TDIU was denied by the RO based on the finding that the Veteran was not precluded from substantially gainful employment by his service-connected lumbar spine disorder. Rather, it was found that a combination of his and nonservice-connected visual impairment resulted in his unemployability. The Veteran's representative has stated in the March 2016 brief, and the Board concurs, that the VA examiner in a September 2014 VA examination failed to provide a probative opinion as to whether the Veteran's service connected lumbar spine disability with associated left leg radiculopathy rendered him unemployable. The examiner could not indicate whether the Veteran could tolerate any kind of manual or sedentary work without resorting to mere speculation. The Board notes that full consideration was not given to the Veteran's limited education (to 11th grade) and work experience shown to include work as a truck driver, shop foreman and factory work. See 48 pg SSA records-Work History at pages 26-34 and the Veteran's 4/17/07 TDIU claim and 5/14/10 Statement in Support of Claim. Such history is relevant to the question of the Veteran's ability to obtain and maintain substantially gainful employment. Additionally, the examiner did not consider the medical evidence that strongly suggests that the Veteran's service connected lumbar spine disorder and associated left lower extremity radiculopathy renders him unemployable, separate of any other non-service connected disability. This evidence includes (but is not limited to) medical records in the SSA records showing the Veteran's lumbar spine disorder has required the regular usage of major opioid based painkillers such as morphine and methadone that could impact employability. See 148 pg SSA recs at pages 58, 64 and 101. Additionally there are medical opinions suggesting that the lumbar spine disability alone may render him unemployable, including an April 2008 orthopedic evaluation for Social Security and a July 2009 letter from a nurse. See 48 pg SSA records-Work History at pages 36-40; and Third Party Correspondence uploaded to VBMS 9/11/08. Recent case law has indicated that the question of whether the Veteran is precluded from substantially gainful employment is legal, and not medical, in nature. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Therefore, an express opinion on the matter of unemployability is not being sought. However, it would be useful to the Board's adjudication if the examiner could describe the types of limitations expected in the workplace with respect to each service-connected disability. Moreover, referral to the Director of Compensation and Pension Services for consideration of entitlement to TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Arrange for an examiner other than the individual who performed the September 2014 examination to review the record, including the SSA records and describe the likely limitations expected in the workplace as a result of both the Veteran's lumbar degenerative disk disease and his left leg radiculopathy. In so doing, the examiner should be mindful of the Veteran's work history as a truck driver, shop foreman and factory worker. Any particular activities that would be difficult to perform should be noted, including prolonged standing, sitting, bending, lifting, etc. If another physical examination is deemed necessary to respond to this inquiry, then one should be arranged. 2. Once the opinion has been obtained, the RO/AMC should submit the claims file to the Director of Compensation and Pension Services for consideration of entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). 3. The RO/AMC should then readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full, the RO/AMC must issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ Eric S. Leboff 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).