Citation Nr: 1750198 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 10-15 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1999 to December 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the Veteran's claim now resides with the RO in Chicago, Illinois. In November 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. In May 2014, the Board, in pertinent part, denied the Veteran's claim for a TDIU. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2015, the Court issued an order vacating the portion of the May 2014 Board decision that denied TDIU and remanding the matter for readjudication consistent with the instructions outlined in a March 2015 Joint Motion for Partial Remand (Joint Motion). In August 2015, the Board again denied the Veteran's claim, and the Veteran again appealed the decision to the Court. In a January 2017 memorandum decision, the Court vacated the August 2015 Board decision and remanded the claim for readjudication. In its August 2015 decision, the Board referred the issues of entitlement to service connection for hemorrhoids as secondary to service-connected irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD), entitlement to service connection for hypertension, and entitlement to service connection for residuals of a tonsillectomy, to include as secondary to IBS with GERD, to the Agency of Original Jurisdiction (AOJ) for appropriate action. The Veteran's representative referred to these claims in October 2017 correspondence. It does not appear that any action has been taken on these issues. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits that does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 38 C.F.R. § 3.155(a). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. Id. As noted in the prior Board decision, evidence of record raised the issues, but there is nothing in the record that meets the standards of a complete claim for benefits. As the Board does not have jurisdiction over these matters they are AGAIN referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. See 38 C.F.R. § 19.9(b). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he is unable to maintain substantially gainful employment as a result of his service-connected disabilities. In its January 2017 memorandum decision, the Court raised several issues with the Board decision, including that the Board should consider whether a combined-effects medical opinion is needed because multiple disorders produced work-related deficiencies and VA examination reports from December 2012, March 2013 and September 2013 disagreed on whether the Veteran's foot disorders caused occupational deficiencies. See Floore v. Shinseki, 26 Vet. App. 376 (2013). The Court also raised questions about the adequacy of prior opinions. For example, the VA examiner who wrote the May and September 2013 opinions did not explain why the Veteran's ability to work "around the house" and complete activities of daily living indicated that he was capable of performing sufficiently in an occupational setting. The examiner did not discuss the Veteran's inability to stand for long periods. The Court also stated that the language used in the opinions provided by the suggests that the examiners may have impermissibly reached a legal conclusion about rather than a medical determination about whether his service-connected disorders affect his ability to function in a workplace setting. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) In light of the questions raised by the Court's memorandum decision concerning the adequacy of the medical findings in the record, remand is needed to afford the Veteran new VA examinations to assess the level of the Veteran's occupational impairment caused by his service-connected disabilities throughout the entire period on appeal. Floore, 26 Vet. App. at 376. The Board notes that the Veteran is presently service-connected for an anxiety disorder, rated as 50 percent disabling; residuals of interstitial cystitis, rated as 40 percent disabling; IBS with GERD, rated as 10 percent disabling; a right foot strain, rated as 10 percent disabling; and a noncompensable left foot calcaneal spur. He meets the minimum schedular criteria for a TDIU as of June 21, 2010, with an 80 percent combined evaluation. 38 C.F.R. § 4.16 (a). The Veteran does not currently meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) for the period prior to June 21, 2010. Prior to this date, his combined evaluation was 40 percent from August 30, 2002, and 50 percent from March 31, 2006. Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. So it is possible to show entitlement to this benefit also on an extra-schedular basis. 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, however, without ensuring initially that the claim is referred to the Director of VA's Compensation Service or other appropriate authority for this special consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). An updated Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated in May 2017 reflects that the Veteran has been working full-time as a maintenance technician for a university since 2014. However, the Veteran's attorney has argued that this employment qualifies as a protected work environment and therefore should not be considered gainful employment. See September 2017 statement from Veteran's attorney. In support of this argument, the Veteran's attorney relies on the July 2017 assessment from a private rehabilitation counselor who concluded that the frequent breaks afforded the Veteran to rest and take bathroom breaks as a result of his service-connected disabilities amounted to a protected environment because they "exceed what is typical of the general labor market and what most employers would find reasonable." However, the May 2017 private examiner's assessment concerning the Veteran's present employment situation appears to be based exclusively on the Veteran's lay reports. On remand, the Veteran should be asked to submit a statement from his employer describing the circumstances of his employment and detailing any accommodations made to the Veteran on account of his service-connected disabilities. The Veteran should also be allowed the opportunity to present any other evidence that would support the contention that his present employment amounts to a protected environment. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit a statement from his employer describing the circumstances of his employment and detailing any accommodations made to the Veteran on account of his service-connected disabilities, as well as any other evidence that would support the Veteran's contention that his present employment amounts to a protected environment. 2. Then schedule the Veteran for appropriate VA examinations to determine the functional impact of his service-connected anxiety disorder, residuals of interstitial cystitis, IBS with GERD, right foot strain, and left foot calcaneal spur on his ability to work. The claims file should be made available to the examiner(s) for review. Based on the examination and review of the complete record, the examiner(s) are to describe the functional effects of the Veteran's service-connected anxiety disorder, residuals of interstitial cystitis, IBS with GERD, right foot strain, and left foot calcaneal spur on ordinary activity. The examiner(s) should also attempt to describe the functional effects of the Veteran's service-connected residuals of interstitial cystitis, IBS with GERD, right and left foot disabilities on ordinary activity prior to June 21, 2010. Specifically, the examiner(s) is/are asked to comment as to the limitations imposed by each of the Veteran's service-connected disabilities on ordinary activity. The examiner(s) is/are requested to provide a complete rationale for any opinion expressed. If an opinion cannot be made without resort to speculation, the examiner(s) should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, if and only if the Veteran is found unemployable prior to June 21, 2010, refer the Veteran's claim of entitlement to a TDIU prior to June 21, 2010 to the Director of Compensation Service for consideration of assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). 4. After conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran 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) (2016).