Citation Nr: 1800022	
Decision Date: 01/02/18    Archive Date: 01/19/18

DOCKET NO.  16-39 750	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Michael Wilson, Counsel




INTRODUCTION

The Veteran served on active duty from February 1943 to February 1946.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required on his part.


REMAND

The Veteran contends that he is unable to secure or follow substantially gainful employment as a result of service-connected bilateral hearing loss and tinnitus.  

The evidence of record, including a March 2016 opinion from a private audiologist, indicates that the Veteran is unemployable due to service-connected disabilities.  As the record currently stands, the Veteran's percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) (2017), as he has a combined 50 percent rating for his hearing loss and tinnitus.  VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations, but the Board is prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b).  Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b).  Accordingly, remand is required in order for the AOJ to refer the Veteran's case to VA's Director of Compensation for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b).  

In remanding this claim, the Board notes that although the determination of whether TDIU is warranted is an adjudicatory one, consistent with Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the private medical opinion and other evidence of record strongly suggests to the Board that entitlement to a TDIU, under 4.16(b), is warranted.

Accordingly, the appeal is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Refer the issue of entitlement to a TDIU to the Director of Compensation Service for consideration of such entitlement under the provisions of 38 C.F.R. § 4.16(b).  The Director (or his designee) should issue a memorandum addressing whether the Veteran is entitled to a TDIU under 38 C.F.R. § 4.16(b).  The memorandum should clearly provide a summary of the facts and law that were relied upon in making the decision and should include an explanation of the reasons and bases for the decision.

2.  If the benefit sought on appeal is not granted in full, issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order.

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 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 (2012).



_________________________________________________
Jonathan Hager
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).