Citation Nr: 1625216 Decision Date: 06/22/16 Archive Date: 07/11/16 DOCKET NO. 11-18 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, The Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from October 1977 to March 1978 and from February 2003 to October 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in December 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the Veteran's claim is properly with the RO in San Juan, Puerto Rico. This matter was previously before the Board in July 2014 and the Board denied the appeal for TDIU. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a January 2016 Order, the Court granted a Joint Motion for Remand (JMR) of the parties (VA Secretary and the Veteran), vacated the Board's decision, and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks TDIU benefits, asserting that his current service-connected disabilities preclude him obtaining and sustaining substantially gainful employment. The July 2014 decision of the Board denied entitlement to TDIU based on a conclusion that the Veteran's service-connected low back disability, bilateral leg radiculopathy, and hypertension coupled with his high school education and past work experience as a driver, lifeguard, and landscaper did not preclude him from engaging in sedentary employment. Further, for the entirety of the appeals period, the Veteran's service-connected disabilities have had a combined schedular rating of 60 percent, which does not satisfy the requirements for an award of TDIU under 38 C.F.R. § 4.16(a). The Veteran's back and bilateral leg radiculopathy may be combined under § 4.16(a) (stemming from the same disability), this combination of 50 percent still falls short of the threshold of 60 percent set forth in that regulation section. The 2014 Board decision declined to refer the matter for consideration of benefits on an extraschedular basis under 38 C.F.R. § 4.16(b), based on the finding that the Veteran could engage in sedentary work. In the December 2015 JMR, the Court noted that the Board cited VA examinations from April 2004, June 2009, and September 2013 in determining that "all" examiners had found the Veteran's disabilities did not render him unemployable, and then specifically stated that "the VA examiner" had considered the Veteran's statements that he could not sit or stand for prolonged periods and still concluded he could perform sedentary work. The JMR found that it was not clear which of the various VA examinations the Board had relied on in finding the Veteran could still work regardless of his contentions. A review of the record shows that the April 2004 VA examination described the Veteran as using a cane to walk at least 60 percent of the time, needing assistance with bathing and dressing during occasional flare-ups of pain, and having difficulty driving more than 15 minutes, and having been prescribed bed rest for a combined period of more than two months in the previous year. The June 2009 VA examination report noted that the Veteran had worked as a bus driver and a heavy machine operator and that he had been prescribed bed rest for his back disability for 8 to 10 days in the previous year. The examiner stated that the Veteran could never work again as a bus driver or heavy machinery operator, would be restricted to a light duty administrative job, and could not sit or stand for more than two hours at a time without taking a break. An addendum opinion in July 2009 stated that the Veteran's back disability would not limit him from performing a sedentary type of job. Since the JMR, the Veteran has submitted a vocational assessment which supports his assertions that he is unable to engage in substantially gainful employment. The vocational expert considered the skills required for the jobs in the Veteran's occupational history and found that they were not transferable to a purely sedentary job, and stated that the Veteran would thereby be relegated to an unskilled or semiskilled sedentary work. The expert noted work restrictions from the June 2009 VA examination including no pushing, no pulling, and no lifting or carrying of objects weighing more than five pounds; however, requirements for unskilled and semiskilled sedentary jobs included lifting and carrying up to 10 pounds. As such, the vocational expert concluded the Veteran was precluded from working a skilled or semiskilled sedentary job, including administration, and would need to find highly skilled sedentary work, for which he was not trained. Finally, the expert noted that the Veteran's low back and leg disabilities resulted in a severe reduction of reliability and productivity on the part of the Veteran, the most important factors in performing any level of work. "He simply could not be reliable enough in attending a job to be able to hold it in on [sic] a consistent basis." In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service for extraschedular consideration. In Bowling, the Court rejected the argument that § 4.16(b) authorized the Board to award extraschedular TDIU in the first instance because the language of that regulation vests that authority solely with the Director and relegates the VA decisionmaker to making the factual finding as to unemployability. The Court also observed in that case that § 4.16(b) "does not specify a quantum of evidence that is necessary to trigger" referral for consideration of extraschedular TDIU. Id. In light of the above evidence, to include the March 2016 vocational assessment, the Board finds that a referral to the Director of Compensation Services for a determination of entitlement to an award of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). However, such referral should not be made until after the additional development described below, including obtaining and reviewing outstanding VA treatment records. The December 2015 JMR also found that the Board had erred in not obtaining VA treatment records from 2006 to the present, despite the Veteran's repeated statements that he was receiving VA treatment and that his conditions were getting worse. VA has a duty to obtain, to incorporate in the record, and to consider all VA treatment records. The Board notes that where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). As such, these VA records must be obtained and added to the claims file on remand before any additional development is undertaken. Also, given the Veteran's statements that his service-connected disabilities have continued to worsen and thereby render him unable to work, as well as the fact that the outstanding VA treatment records cover a span of some 6 years, consideration should be given as to whether an increased disability rating is warranted for any of the Veteran's service-connected disabilities. The RO/AMC should evaluate the records and take any necessary steps to consider increased disability ratings prior to any referral to the Director, given that an award of TDIU on a schedular basis would be possible once a combined rating of 70 percent is assigned. Accordingly, the case is REMANDED for the following actions: 1. Obtain and incorporate into the record all VA treatment records from 2006 onwards. The Veteran should also be asked to submit signed releases for any records of private treatment of any service-connected disabilities from 2006 onwards. If, after all due diligence, it is determined that any of the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e). 2. After receiving all recent medical records, reconsider the Veteran's claim for TDIU, to include contemplation of whether the new evidence indicates that an increase in the rating for any of his service-connected disabilities is warranted. 3. After such reconsideration, if the Veteran still does not meet the schedular criteria of 38 C.F.R. § 4.16(a) for any portion of the appeals period, this matter shall be referred to the Director for Compensation for consideration of entitlement to TDIU on an extraschedular basis is warranted in light of the Veteran's physical limitations, education, and occupational history. 4. Thereafter, readjudicate the matter on appeal. If the benefit sought on appeal is not granted in full, 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 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 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). _________________________________________________ P. Sorisio 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).