Citation Nr: 1633430 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 05-24 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Appellant's spouse ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from September July 1968 to December 1968. This matter initially came before the Board of Veterans' Appeals (Board) in November 2010 on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2011, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand which remanded the Board's November 2010 decision only to the extent that it failed to adjudicate a claim for TDIU. The Board remanded the issue in April 2012. In a June 2014 decision, the Board denied the claim for TDIU. In an April 2015 Joint Motion for Remand, the Board's June 2014 decision was vacated and remanded. Thereafter, the Board remanded the issue in September 2015. The Veteran and his spouse testified at a hearing before the undersigned in March 2016. A transcript of the 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 At the hearing before the undersigned in March 2016 the Veteran reported that he received his care from VA. The most recent VA treatment record associated with the claims file is dated in August 2013. As such, on remand attempts must be made to obtain complete VA treatment records regarding the Veteran dated since August 2013. 38 C.F.R. § 3.159 (2015). The record includes a private employability assessment submitted by the Veteran in November 2015. The assessment indicates that the claims file was reviewed and the Veteran was interviewed in October 2015. The vocational specialist rendered the opinion that the records in the claims file are consistent with an individual who is disabled and unable to follow and secure substantial employment. The specialist stated: In my professional opinion, is more likely than not that [the Veteran] is unemployable as a result of the residual effects of the total right knee replacement. The symptoms have resulted in an inability to attend basic work functions and resulted in him being unable to secure and follow substantially gainful employment. His disabling conditions have worsened since last working full time. He is status post a total right knee replacement in July 2003 and has had several right knee procedures since his total knee replacement in hopes of alleviating his symptoms. He has been unable to follow and secure substantial gainful employment since July 2003. The Veteran's combined disability rating is 50 percent. Thus, he does not meet the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16(a). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). As the record does not show that the Veteran's claim was ever submitted to the VA's Director of Compensation Service for extraschedular consideration, remand is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records regarding the Veteran dated since August 2013. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. After completion of the foregoing, refer the claim of entitlement to TDIU to the Compensation Service Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). 3. Then re-adjudicate the Veteran's claim. If the benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. 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). _________________________________________________ M. E. LARKIN 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).