Citation Nr: 1804411 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 04-03 412A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1977 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a videoconference hearing before the Board in July 2008. A transcript of that hearing has been associated with the claims file. This claim was previously before the Board in May 2017, at which time it was remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16(2017). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2017) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service-connected disability actually renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. The Veteran has a 40 percent evaluation for his service-connected chronic low back strain with mild degenerative changes from September 03, 2002. The evidence indicates that the Veteran has failed to meet the percentage standards set forth in § 4.16(a). There is, however, plausible evidence of record that suggests the Veteran may be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, such that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) is warranted. In particular, the evidence of record shows that the Veteran worked as a commercial truck driver, as a security guard, and as a mail carrier. He also reported that he obtained a college degree in supply chain management. Notably, the Veteran has submitted credible statements that he last worked fulltime in 2004, and had not worked over a year fulltime since he left the postal service in approximately 1998. Furthermore, the Veteran indicated that he lost work because he complained of back pain. As to the plausible evidence of unemployability, the Veteran's statements indicate that he had daily low back symptoms that worsened when standing, walking, or sitting for longer periods of time. During school to obtain his associate degree, the Veteran needed to switch to online classes because he could not sit in a classroom for a complete hour. The Veteran received VA examinations in July 2012, September 2014, and July 2017. At each of the examinations, the examiner noted the Veteran's inability to sit for long periods of time, but indicated that the Veteran could perform light or sedentary employment. If the Veteran were to work in an office environment, the September 2014 examiner found that he would need to walk around as needed. While these VA examiners' findings do not preclude the possibility of any employment, they do show that the Veteran's service-connected chronic low back strain with mild degenerative changes significantly impairs his employability. Since there is probative evidence of record that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disability, the Board therefore finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). In light of this evidence, the Board finds the issue of entitlement to TDIU benefits under 38 C.F.R. § 4.16(b) should be referred to the Director of Compensation and Pension Service for adjudication. For these reasons, the Board finds that a remand for this referral is warranted. Accordingly, the case is REMANDED for the following action: 1. Refer the case to the Director of Compensation for an opinion respecting whether the Veteran is unemployable due to his service-connected chronic low back strain with mild degenerative changes under 38 C.F.R. § 4.16(b). 2. Upon completion, readjudicate the claim for TDIU on an extraschedular basis. If the benefit sought is not granted, issue the Veteran and his representative a supplement statement of the case (SSOC) and return the matter to the Board for further review. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ Michael J. Skaltsounis 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).