Citation Nr: 1751113 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-24 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1985 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2015 and March 2017, the Board remanded this matter for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Veteran contends that he is unable to maintain gainful employment due to his service-connected right upper extremity disabilities. In February 2015, the case was remanded, in part, to obtain a VA medical examination addressing how the Veteran's service-connected disabilities impact his employability. An October 2015 VA examiner found the Veteran's disabilities impacted his ability to work by limiting data entry, lifting, writing, and working with right hand loss of dexterity, all of which would limit his ability to function in his occupation as an engineer, as well as other white collar or factory work. In March 2010, the Veteran's private physician also stated that the Veteran's right upper extremity disabilities cause severe impact on the Veteran's occupational functioning. The Veteran's representative further argued that the Veteran lives in a small town, which has limited sedentary employment opportunities, and that his disabilities prevent him from being able to drive to a city where such jobs would be available. The March 2017 Board previously determined that the evidence of record clearly showed that the Veteran had some occupational impairment from his right upper extremity disabilities. However, the Board was unable to determine, based on this current evidence of record, whether these disabilities precluded all forms of substantially gainful employment. The March 2017 Board remand directed the RO to schedule the Veteran for VA examination to evaluate the combined impact of his service-connected disabilities on his economic adaptability since 2008. The Veteran underwent a VA examination for his service-connected right upper extremity disabilities in May 2017. The VA examiner was requested to offer an opinion as to whether the Veteran's service-connected disabilities, taken cumulatively, and in conjunction with his education and occupational experience, were sufficient to preclude his obtaining and retaining any form of substantially gainful (including sedentary) employment. Although the VA examiner concluded that it was at least as likely as not the Veteran was able to perform light work in a normal eight (8) hour work day for each specific disability, the VA examiner failed to comment on the Veteran's service-connected disabilities cumulatively or evaluating the combined impact of his service-connected disabilities. In fact, a memo written by the RO and associated with the claims file in August 2017 specifically records that the claim was not ready for decision as the VA examiner was specifically requested to evaluate the "combined" impact of his service connected disabilities since 2008. In spite of this memo, the RO continued to issue a Supplemental Statement of the Case in August 2017 without implementing corrective procedures. The Board also notes that the VA examiner did not provide any rationale in this assessment. Therefore, the Board finds a remand is warranted to obtain an addendum from the May 2017 VA examiner commenting on the impact of all of the Veteran's service-connected disabilities. Further, under 38 C.F.R. § 4.16(a), a veteran must meet certain schedular criteria before an award of a TDIU may be granted. At the present time, the Veteran does not meet the schedular criteria for consideration of the assignment of TDIU pursuant to 38 C.F.R. § 4.16 (a). However, a TDIU may be granted on an extraschedular basis if the evidence establishes that a claimant is unable to secure and follow a substantially gainful occupation because of a service-connected disability. See 38 C.F.R. § 4.16 (b) (2016). The Board cannot grant a TDIU claim under 38 C.F.R. § 4.16 (b) in the first instance, as the regulation requires that the RO first submit the claim to the Director of the Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Accordingly, on remand, the Board requests that this matter be referred to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). Finally, the Veteran has not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, or otherwise provided information as to the nature of his work history during the appeal period. Consistent with the March 2017 Board remand, the RO provided the Veteran a duty-to-assist notice letter and asked the Veteran to complete a VA Form 21-8940 in April 2017. The Veteran did not respond to this request. As such, the record is unclear as to the nature of the Veteran's work during the appeal period and as to the dates he worked since 2008. The most recent VA examination notes that the Veteran is now retired. Given the apparent change in the Veteran's employment status, the unclear nature of the record and the need for a supplemental medical opinion, the Board finds that the Veteran should be given another opportunity to complete a VA Form 21-8940 or otherwise provide a detailed explanation of his work history during the entire appeal period, to include his employers, the nature of the work performed, the dates of employment and his reasons for leaving the past employment. The Veteran is reminded that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran a letter explaining the factors pertinent to establishing entitlement to a TDIU. The letter must be enclosed with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The letter should inform the Veteran that it is vital to his appeal for entitlement to a TDIU that he provide the information requested on the VA Form 21-8940, to include, but not limited to, a detailed explanation of his employers, the nature of the work performed, the dates of employment, and his reasons for leaving his employment during the appeal period. 2. After the Veteran has been given an adequate opportunity to submit any additional evidence pertaining to the claim for a TDIU, forward the entire claims file to the examiner who prepared the May 2017 VA examination reports for a supplemental opinion. If the prior examiner is unavailable, or is unable to provide the requested supplemental opinion without examining the Veteran, schedule the Veteran for a VA examination, by an examiner with the appropriate expertise, to obtain the requested opinions. The examiner must review the claims file and that review must be noted in the report. The examination report should include discussion of the Veteran's documented medical history and assertions since 2008. The examiner should provide the following information: Based on review of the record, the examiner should comment on the Veteran's ability to function in an occupational environment and describe the functional limitations related to the combined impact of his service-connected disabilities. In doing so, the examiner is asked to take the Veteran's level of education, special training, and previous work experience into consideration, but disregard his age or any impairment caused by nonservice-connected disabilities. *The report of examination should include a complete rationale for all conclusions expressed. 3. Then, refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of entitlement to TDIU pursuant to 38 C.F.R. § 4.16 (b). 4. After ensuring compliance with the above, readjudicate the claim for a TDIU. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ LESLEY A. REIN 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) (2017).