Citation Nr: 1642123 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 13-13 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for left hip with hypertrophic changes at femoral head margins, narrowing at the medial joint space, some deformity of the femoral head and some foreshortening of the femoral neck. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to October 1975. This matter is on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In May 2014, the Board issued a decision that denied an earlier effective date for the grant of service connection for a left hip disability, denied an initial rating in excess of 30 percent for a left hip disability, and granted a separate initial 10 percent rating for a left hip disability characterized as degenerative joint disease. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2016 Memorandum Decision, the Court vacated the Board's decision with respect to his increased rating for a left hip disability. The denial of his earlier effective date claim and the award of a separate 10 percent evaluation for left hip degenerative joint disease were not disturbed. The Court additionally found that although the Veteran did not file a formal claim for TDIU during the course of this appeal, a review of the evidence reflects that the issue of a total disability rating based on individual unemployability (TDIU) has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. The Board has included this issue in his appeal. The case has been remanded back to the Board. This appeal is comprised of documents contained in the Veterans Benefits Management System (VBMS) and the Virtual VA system. All future documents should be incorporated into the Veteran's VBMS file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the March 2016 Court Memorandum Decision, the Board will remand for further development the Veteran's claim for an increased rating for left hip with hypertrophic changes at the femoral head margins, narrowing at the medial joint space, some deformity of the femoral head and some foreshortening of the femoral neck. The Court essentially found that the Board relied on its own medical analysis without adequate medical support in denying the Veteran a rating in excess of 30 percent. The Board realizes that following the Board's March 2014 decision, the Veteran has been afforded an additional March 2015 VA examination of his hip. Unfortunately, this examination does not address all the concerns raised by the March 2016 Court decision. The Board finds an additional examination, which addresses whether or not the Veteran has had nonunion of the left femoral neck fracture with false joint is necessary. Additionally, the March 2015 VA examination does not adequately address at which points the Veteran experiences pain on range of motion testing. With respect to his claim for TDIU, total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the above percentages are not met, the Veteran's claim may still be referred to the Director, Compensation and Pension Service for an extraschedular rating, when the evidence of record shows that Veteran is 'unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.' 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's employment history, his educational and vocational attainment, as well as his particular physical disabilities are to be considered in making a determination on unemployability. The Veteran is service connected for left hip with hypertrophic changes at femoral head margins, narrowing at the medal joint space, some deformity of the femoral head and some foreshortening of the femoral neck (30 percent disabling), and degenerative joint disease of the left hip (10 percent disabling). Together he has a combined evaluation of 40 percent. Therefore, the Veteran does not meet the schedular criteria for a TDIU rating. See 38 C.F.R. § 4.16(a). However, he may still be entitled to TDIU based on 38 C.F.R. §§ 4.l6 (b). The Veteran reported in his VA Form 21-8940 submitted in December 2014 that he last worked full-time in 1973. He stated that he became too disabled to work in 1996 and attributed this to his left hip. At an April 2015 VA examination the examiner noted that the Veteran would be unable to successfully complete a position which is predominantly physical such as construction, warehouse work, working at Goodyear, etc. She did note that he might be able to do a sedentary position provided he was given to opportunity to change positions frequently. Based on this evidence, while the Veteran fails to meet the criteria for a schedular TDIU, the evidence of record indicates that he may be unemployable due to his service-connected disability. Here, the Board finds that, based on VA examiner's opinion, the Veteran has provided sufficient evidence to warrant referral of his TDIU claim to the Director of Compensation and Pension Service for extraschedular consideration. The authority to assign extraschedular ratings has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service, and not the Board, in the first instance. Therefore, the correct course of action for the Board, where it finds that entitlement to an extraschedular evaluation may be present, is to raise the issue and remand it for the proper procedural actions outlined in 38 C.F.R. § 4.16(b). Floyd v. Brown, 9 Vet. App. 88 (1996). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected left hip disability. The Veteran's claims file should be provided to the examiner. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. Any testing deemed necessary should be performed. With regard to the left hip disability, the joint involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Following review of the claims file the examiner should provide an opinion on the following: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran has exhibited nonunion of the left femoral neck fracture with false joint at any point during the period on appeal. The VA examiner should address Dr. I.S.'s March 2006 determination that the Veteran had a nonunion of the left femoral neck fracture. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Refer the Veteran's claim for a TDIU to the Director of Compensation and Pension Service for extraschedular consideration pursuant to the provisions of 38 C.F.R. § 4.16(b). 3. Following the above development, review the claims file and readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ MICHAEL MARTIN 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).