Citation Nr: 1759931 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-24 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities, for substitution purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION The Veteran had active service from October 2000 to March 2001. The Veteran died in April 2017. The appellant, the Veteran's surviving spouse, has been recognized as the substitute claimant pursuant to 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 determination issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In correspondence received in June 2010, the Veteran requested a Board hearing. However, in subsequent correspondence received in May 2011 and July 2016, he indicated that he no longer wanted a Board hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Prior to his death, the Veteran asserted that he was unable to maintain substantially gainful employment due to his service-connected disabilities. The Board observes that the Veteran was service-connected for depressive disorder, rated as 30 percent disabling; hypertension, rated as 10 percent disabling; a lumbar spine disability, rated as 10 percent disabling; radiculopathy of the right lower extremity, rated as 10 percent disabling; radiculopathy of the lower left extremity, rated as 10 percent disabling; a left knee disability, rated as 10 percent disabling; a right knee disability, rated as 30 percent disabling from April 1, 2004, and from August 1, 2011, as 100 percent disabling from May 10, 2011, and from March 29, 2016, and as 80 percent disabling from October 1, 2016; and scars rated as noncompensable. From September 16, 2009, and from August 1, 2011, the Veteran's combined disability rating was 60 percent. From May 10, 2011, from March 29, 2016, and from April 13, 2016 the Veteran's combined disability rating was 100 percent. From October 1, 2016, the Veteran's combined disability rating was 80 percent. The Veteran does not meet the threshold requirements for a TDIU on a schedular basis from September 16, 2009, and from August 1, 2011. The Board must consider whether the appellant's service connected disabilities affect his employability to the extent that a remand to the Director of Compensation Service to consider entitlement to a TDIU on an extraschedular basis is warranted for those periods. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). However, additional development is required prior to determining if referral for extraschedular consideration is warranted and determining whether a TDIU is warranted for periods during which the schedular criteria have been met. In the Veteran's Application for Increased Compensation Based on Unemployability received in March 2009, the Veteran specifically indicated that his service-connected depression, hypertension, pain, and medication prevented him from securing or following any substantially gainful occupation. In a subsequent Application for Increased Compensation Based on Unemployability received in received in May 2011, he asserted that his bilateral knee disabilities and depression prevented him from securing or following any substantially gainful occupation. Records obtained from the Social Security Administration (SSA) demonstrate that disability benefits were awarded for the Veteran's service-connected back disability. The Board observes that the Veteran underwent a number of VA examinations during the pendency of his claim. Although the examiners determined that the Veteran's diagnosed bilateral knee and lumbar spine disabilities impacted his ability to work, the examiners did not determine whether the Veteran's disabilities precluded him from maintaining and substantially gainful employment. Most recently, the Veteran underwent a VA examination in October 2016 for his service-connected knee disabilities. With regard to functional impact, the examiner indicated that the Veteran could not work due to his use of crutches. However, the examiner did not provide a rationale to for his finding. Specifically, he failed to explain how or why the use crutches, and not the actual knee disability, rendered the Veteran unemployable. Notably, the evidence indicates that the crutches were provided following a right knee surgical procedure. Thus, the opinion is not sufficient to show that the Veteran's right knee disability precluded him for obtaining and maintaining employment. Notwithstanding, in an appellate brief received in November 2017, the appellant's representative asserted that the Veteran's chronic pain, medication, and hypertension all impacted his employability. In a subsequent appellate brief received in November 2017, the appellant's representative asserted that it was the combined effects of the Veteran's disabilities that precluded him from obtaining and maintaining employment. The Board acknowledges that the although the available medical evidence of record indicates that the Veteran's service-connected disabilities impacted his ability to work; it does not suggest, however, that the Veteran's service-connected disabilities rendered him unemployable. The appellant's representative has asserted that it was the combination of the effects of the Veteran's service-connected disabilities, to include the medications used to treat the conditions, rendered him unemployable. He argued that this was not considered by the RO. The Board observes that the record available to the Board does not suggest that the Veteran had been employed at any time since the filing of his TDIU claim. Thus, given the available record, the Board finds it necessary to remand the claim for a "combined effects" medical opinion in order to sufficiently address the issue on appeal. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013) (combined effects opinion not required per se, but may be necessary to sufficiently address a TDIU claim). Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriate VA examiner for the purpose of obtaining an opinion commenting on the effects of the combination of the Veteran's service-connected disabilities on his ability to secure or follow gainful employment. The examiner is advised that the Veteran is currently service connected for a psychiatric disorder, a lumbar spine disability, right and left knee disabilities, hypertension, radiculopathy of the bilateral lower extremities, and scars. The examiner should provide an opinion by commenting on the "combined effects" of the Veteran's service-connected disabilities on his ability to secure or follow gainful occupation for the appeal period. In proffering an opinion, the examiner should review the claims file and take into consideration the Veteran's level of education, special training, and previous work experience, but not age or any impairment caused by nonservice-connected disabilities. The examiner must specifically address the effects of the Veteran's medications used to treat his service-connected disabilities on his employability. All opinions expressed should be accompanied by supporting rationale. 2. After undertaking any development deemed necessary, readjudicate the issue on appeal, considering all the evidence of record. If the benefit sought on appeal remains denied, provide the appellant and her representative with a Supplemental Statement of the Case and the opportunity to respond. The case should then be returned to the Board for further 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. §§ 5109B, 7112 (West 2014). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).