Citation Nr: 1800638	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-26 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a total disability rating due to individual unemployability (TDIU), to include based on an extraschedular basis. 


REPRESENTATION

Veteran represented by:	Penelope Gronbeck, Attorney


WITNESS AT HEARING ON APPEAL

Veteran 

ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from March 1976 to March 1980 and January 1981 to February 1982. 

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2016, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing at the RO.  The transcript of the hearing is of record.  

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


REMAND

The Veteran maintains that he is unemployable due to his right hip disability.  

Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

There is favorable medical evidence in the file for the Veteran's claim of entitlement to a TDIU.  A December 2016 private employability evaluation report indicates that the Veteran is no longer able to work because of significant right hip problems.  In this case, service connection is in effect for the Veteran for avascular necrosis of the right hip, status post total hip replacement, rated as 30 percent disabling.  As such, the Veteran's single service-connected disability does not presently meet the schedular criteria for a TDIU under the provisions of 38 C.F.R. § 4.16 (a), as it is not rated as 60 percent or more.  

Nevertheless, he may alternatively establish his entitlement to this benefit on an extraschedular basis pursuant to the alternative provisions of 38 C.F.R. § 4.16 (b), provided that it is shown he was precluded from obtaining and maintaining substantially gainful employment solely due to his service-connected disability.  The Board is precluded from assigning a TDIU on this alternative basis, in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation and Pension Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242(2008).  In light the evidence cited above, the Board finds that additional examination and opinion are needed.  

Accordingly, the case is REMANDED for the following action:

1. Refer the claim of entitlement to extraschedular consideration for the Veteran's service-connected hearing loss to the Chief Benefits Director of VA's Compensation and Pension Service for consideration of assigning a TDIU on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16 (b).

2. Thereafter, readjudicate the claim on appeal. 

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).



_________________________________________________
BRADLEY W. HENNINGS
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).