Citation Nr: 1720751 Decision Date: 06/08/17 Archive Date: 06/21/17 DOCKET NO. 11-23 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1985 to February 1988. In December 2013, the Veteran testified at a hearing conducted via video conference with a Veterans Law Judge. A transcript of the hearing is of record. A claim for entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease (DJD) of the lumbar spine, prior to December 16, 2013, and in excess of a 20 percent disability thereafter was previously before the Board in October 2015. At that time, the Board found that a claim of entitlement to a TDIU had been raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veterans Law Judge who conducted the December 2013 hearing is no longer employed by the Board. In August 2015, the Veteran was notified that, as that person is no longer available, his appeal will be assigned to another Veterans Law Judge. The Veteran was notified of his right to request another Board hearing. In September 2015, the Veteran replied, indicating he did not wish to appear at another Board hearing. In May 2016, a claim for TDIU was filed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16(2015). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2015) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service connected disability actually renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. The Veteran has a 10 percent evaluation for his service connected disabilities from March 9, 2010, a 20 percent evaluation from December 16, 2013, and a 30 percent combined evaluation from October 31, 2014. The evidence indicates that the Veteran has failed to meet the percentage standards set forth in § 4.16(a). There is, however, plausible evidence of record that suggests the Veteran may be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, such that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) is warranted. In particular, the evidence of record shows that the Veteran worked in the printing business for approximately 20 years. He obtained a year and a half of college credits, going to school for Commercial and Advertising Art. From 2005 to 2008, he worked in temporary positions at two printing companies, with the potential to be hired full time. Notably, the Veteran reported his back got worse and he was not hired by either company; he has been unemployed since 2008. As to the plausible evidence of unemployability, Veteran received a VA examination in August 2016, and the examiner indicated that the Veteran is unable to engage in prolonged standing, prolonged walking, deep or repeated bending, heavy lifting, carrying heavy loads, performing prolonged or strenuous pushing/pulling, twisting side to side while carrying heavy loads, climbing ladders, climbing many stairs, squatting, kneeling, crawling, running, or jumping. The examiner also indicated that the Veteran has difficulty sitting for long periods of time. While these VA examiner's findings do not preclude the possibility of any employment, they do show that the Veteran's service connected disabilities, particularly his left knee disability, significantly impairs his employability. Since there is probative evidence of record that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, the Board therefore finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). In light of this evidence, the Board finds the issue of entitlement to TDIU benefits under 38 C.F.R. § 4.16(b) should be referred to the Director of Compensation and Pension Service for adjudication. For these reasons, the Board finds that a remand for this referral is warranted. Accordingly, the case is REMANDED for the following action: 1. Refer the case to the Director of Compensation for an opinion respecting whether the Veteran is unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16(b). 2. Upon completion, readjudicate the claim for TDIU on an extraschedular basis. If the benefit sought is not granted, issue the Veteran and his representative a supplement statement of the case (SSOC) and return the matter to the Board for further 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). _________________________________________________ Michael J. Skaltsounis 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) (2016).