Citation Nr: 1803493 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 08-26 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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 Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan In April 2017, the Board denied the Veteran's claim for a TDIU. The Veteran appealed this determination, and in October 2017, the Court of Appeals for Veteran's Claims (Court) granted a Joint Motion for Remand (Joint Motion), vacating the April 2017 decision. The appeal has been returned to the Board for adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). As noted above, in October 2017, the Court granted a Joint Motion, vacating the April 2017 Board decision that denied the Veteran's claim for entitlement to TDIU. In essence, the Veteran contends that his service-connected epilepsy and tinnitus substantially contributed to his being laid off in October 2002, and that he has not been able to secure and follow gainful employment due to these disabilities. VA recognizes the need for special development in cases involving epilepsy and unemployability. See 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, when an unemployability claim is based on epilepsy, raters are directed to "bear in mind that the epileptic, although his or her seizures are controlled, may find employment and rehabilitation difficult of attainment due to employer reluctance to the hiring of the epileptic." 38 C.F.R. § 4.124a, Epilepsy and Unemployability, Note(1). The regulation further provides for special development that should be undertaken "where a case is encountered with a definite history of unemployment," to include obtaining an economic and social survey. This parties' Joint Motion stated, in pertinent part, that the Board's analysis and consideration of 38 C.R. § 4.124a was inadequate as it did not address whether the Veteran's case is one with "a definite history of unemployment" and/or whether additional development is necessary under Notes (1)-(3) of the regulations, to include obtaining an economic and social survey. The parties further noted that whereas the Board seemed to focus on the fact that the Veteran had not had a seizure since 1987, 38 C.F.R. § 4.124a specifically directs adjudicators to look beyond whether seizures are controlled. Upon review of the record, a definite history of unemployment is shown by the record. According to the Veteran's September 2006 TDIU form, he was forced to go on disability in October 2002 because he was "[u]nable to pass any type of company physical." The Veteran further stated that "[p]rior to 2002, I was able to hide my [petite mal] Seizures, but I star[t]ed having [grand mal] Seizures on the job and became a liability to the company. I work around assembly lines and equipment constantly and my employer felt that I was not only a danger to myself, but other[s] as well." Notably, in September 2009, the Veteran's representative stated "the appellate had seizures while on duty in 1988 at [F-L]" and that "the veteran is willing to return to work but his doctor will not give him a clean bill of health which states he no longer has seizures." In light of the concerns raised in the Joint Motion, evidence of unemployment, and VA's regulation specifically directing full and complete development to be undertaken to ascertain whether the epilepsy is the "determining factor" in the Veteran's inability to find employment, to include obtaining an economic and social survey under 38 C.F.R. § 4.124a, the Board will remand this appeal so that such development can take place. The Board notes that under 38 C.F.R. § 4.124a, the assent of the claimant should first be obtained for permission to conduct this economic and social survey. The purpose of this survey is to secure all the relevant facts and data necessary to permit of a true judgment as to the reason for his or her unemployment and should include information as to: (a) Education; (b) Occupations prior and subsequent to service; (c) Places of employment and reasons for termination; (d) Wages received; (e) Number of seizures. 38 C.F.R. § 4.124a, Diagnostic Codes 8910-8914, Epilepsies and Unemployability, Notes (1)-(3). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he identify and submit, or authorize VA to obtain any records of treatment (VA or private) for epilepsy and/or tinnitus that are not currently of record. Obtain all identified records. 2. Schedule the Veteran for an appropriate examination to assess the current severity of the Veteran's epilepsy. The examiner should specifically comment upon the effect, if any, the Veteran's disability has on his ability to work or find work. 3. In accordance with 38 C.F.R. § 4.124a, Epilepsies and Unemployability, Notes (1)-(4), with the Veteran's written consent, the AOJ should administer an economic and social survey to obtain relevant facts and data necessary to permit a true judgment as to the reason for the Veteran's unemployment. The survey report should include information regarding the Veteran's education; occupations prior to and subsequent to service; places of employment and reasons for termination; wages received; and number of seizures. The person should provide an observation as to the impact the Veteran's service-connected epilepsy and tinnitus has on his ability to secure and follow gainful employment. The Veteran's claims file is to be made available to the person conducting the economic and social survey. 4. In compliance with the notations regarding Epilepsy and Unemployability under 38 C.F.R. § 4.124a, Note (4), if deemed appropriate following completion of the survey and examination above, the case should be submitted to the Director, Compensation Service for consideration as to whether TDIU may be awarded on an extraschedular basis. 5. Readjudicate the appeal. If the benefit sought on appeal is not granted a Supplemental Statement of the Case should be issued, and the Veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ V. CHIAPPETTA 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).