Citation Nr: 1800034 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 10-46 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1956 to May 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This matter was previously before the Board in April 2014 and was remanded for further development. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). 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 he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. He is service-connected for post-operative residuals of peptic ulcer surgery rated as 40 percent disabling from June 23, 2009. The Veteran is also service-connected for an abdominal scar associated with his post-operative residuals of peptic ulcer surgery, rated as 10 percent disabling from September 14, 2009, tinnitus, rated as 10 percent disabling from September 22, 2010, and hearing loss, rated as noncompensable from September 22, 2010. His total combined disability rating is 50 percent disabling effective September 14, 2009. As such, he does not meet the requirements under 38 C.F.R. § 4.16(a) for a schedular TDIU. The Board is required to submit to the Director of Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under § 4.16(b) and may only refer the claim to the Director of Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board finds that there is sufficient evidence to meet the criteria for submission of the Veteran's claim to the Director of Compensation and Pension Service for consideration of TDIU on an extraschedular basis. In an October 2009 medical visit, the Veteran stated he had to retire from work due to his depression related to his GI issue. The Veteran stated in his November 2009 notice of disagreement that he is fully disabled because of his "dumping" in which he soils his clothing due to his inability to control his bowels. The Veteran stated that he experienced palpations, sweating, nausea, cramps, and sometimes vomiting. These episodes last for hours and leave him totally exhausted. In September 2010, the Veteran saw his doctor for his peptic ulcer. The Veteran had been put on medication which seemed to be helping his symptoms of diarrhea, cramp pain, and bloating. The Veteran was afforded an examination for his post-operative peptic ulcer condition in April 2011. The examiner noted that in November 2009, the Veteran had stated that "dumping" occurred after every meal and could occur instantly up to one hour afterwards. The April 2011 examiner stated the Veteran's ulcer condition did not interfere with occupational functioning, saying the Veteran had been able to work until 2008 when he stopped his motorcycle parts business, which he stated was due to post-prandial diarrhea. The Veteran stated he has no desire to work in an office at the time. The examiner noted the Veteran's dumping condition had been present since 1969, had not worsened in that time, and the Veteran had been able to work in all that time up until 2008 despite the condition. The examiner stated the Veteran had fecal accidents every three years or so. The examiner did note that some of the Veteran's symptoms, such as toileting, make it difficult for the Veteran to travel if he does not have ready access to a bathroom. The April 2011 examiner stated the Veteran denied vomiting, except when he has active gastritis every three to four years. The examiner stated the Veteran had regular episodes of intermittent diarrhea, but no periods of incapacitation due to stomach or duodenal disease. The Veteran called his medical provider in June 2011 to say that he had eaten, which lead to his dumping syndrome. The Veteran reported he had pressure in his lower intestines and was nauseated for three days. The Veteran's medical records from 2014 to 2017 show that he continued to have symptoms in relation to his "dumping" syndrome. While the April 2011 examiner opined that the Veteran's symptoms from his service-connected disabilities did not interfere with his occupational functioning, there is medical evidence, along with the Veteran's lay statements, to show that his occupational functioning is impacted by his service-connected disabilities. Therefore, referral to the Director of Compensation and Pension Service for consideration of TDIU on an extraschedular basis is warranted. Accordingly, the case 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. The AOJ should undertake any additional development deemed warranted to ascertain the occupational impact of the Veteran's service-connected disabilities, including obtaining any outstanding medical records and re-sending the Veteran a Form 8940. 2. Thereafter, unless the AOJ finds that a fully favorable decision can be rendered, refer the claim to the Director of Compensation and Pension Service for consideration of whether a TDIU on an extraschedular basis is warranted. 3. Thereafter, readjudicate the appeal. If the benefits sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. 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). _________________________________________________ ERIC S. LEBOFF 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).