Citation Nr: 1646890 Decision Date: 12/15/16 Archive Date: 12/30/16 DOCKET NO. 11-28 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from June 1989 to June 1998. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is required in this case. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran is service connected for psoriasis/chronic dermatitis of the arms and knees, hypertension, right and left carpal tunnel syndrome, musculoskeletal back pain, and right and left knee disability. On his December 2008 claim for TDIU the Veteran reported he had last worked in October 2007 in maintenance. He reported his highest level of education completed was high school and he had worked in maintenance since 1998. The company he worked for from 1998 to 2007 indicated that the Veteran's employment ended due to partial closure of the facility and did not report any concessions made by reason of disability. The company he worked for briefly in 2007 indicated that his employment termination was an "orientation release." In November 2008 a private doctor opined that the Veteran is permanently and totally disabled, preventing him from securing or following any substantially gainful work, noting the Veteran's knee osteoarthritis, psoriasis, and inguinal hernia. The doctor stated that the Veteran is unable to tolerate standing more than a few hours, cannot use his elbow with a psoriasis flare, and cannot lift more than 50 pounds. Notably, the Veteran is not service connected for a hernia. The Veteran submitted a November 2008 letter he had received in response to his application for a maintenance helper position that indicated that his medical restrictions due to bilateral knee osteoarthritis of no heavy lifting or prolonged working on his knees would prevent him from being accommodated in the position. The Veteran underwent a VA examination of his knees and back in April 2009. The examiner opined that the pain in the Veteran's knees likely limits his ability to spend a full day standing and walking and his low back strain also does likely limit his ability to work a full eight hour day, although he thought the condition would improve. In February 2010 the Veteran underwent another VA examination. With respect to his psoriasis, the examiner noted that the Veteran treats the condition with subcutaneous injections and it does not cause any limitations of activities of daily life or job. With respect to the Veteran's carpal tunnel syndrome, the examiner indicated that the condition is relatively asymptomatic and the Veteran reported that he no longer drops things or has any weakness in his hands since his surgery in 2000 and 2001. The examiner stated that the Veteran's hypertension is controlled with medication. With respect to the Veteran's knee disability, the Veteran reported pain in both knees. He stated that walking is painful and prolonged standing can aggravate the condition. The examiner indicated the Veteran reported back pain that is exacerbated two to three times a day causing pain of a 4 on a scale to 10. The examiner noted the Veteran recently began working as a store clerk four hours a day on most days. In his October 2011 substantive appeal the Veteran stated that his hands hurt and it is difficult to write and open jars sometimes. He also stated that after four hours at work his knees hurt and get stiff and that sometimes when he squats it is difficult to get up. The record reflects that in September 2016 the Veteran underwent a left total knee replacement. As the evidence suggests that the nature and severity of the Veteran's service connected disabilities may have changed since his February 2010 VA examination, to include the Veteran's lay statements of increased carpal tunnel syndrome symptomatology and changes in his knee symptomatology including a total knee replacement, the Board finds a new VA examination assessing the functional impairment caused by his service-connected disabilities is needed. Further, the evidence reflects that the Veteran's employment situation changed during the pendency of his appeal with his acquisition of at least part-time employment in approximately early 2010 as a store clerk. A subsequent September 2016 record form Adventist Medical Center indicated he was retired. Thus, it is unclear if the Veteran is still working, and if so, whether any work done during the pendency of the appeal constitutes marginal employment. 38 C.F.R. § 4.16 (explaining that marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person); see also Faust v. West, 13 Vet. App. 342 (2000). On remand, the Veteran should be asked to provide updated information as to his employment history since he filed his claim in December 2008. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide information as to his employment from December 2008 to present. 2. Arrange for the Veteran to undergo a VA examination to obtain an opinion as to the functional impairment caused solely by his service-connected disabilities. 3. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. 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. Thereafter, the case should be returned to the Board for appellate review. 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). 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). _________________________________________________ H. SEESEL 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).