Citation Nr: 1805031 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 94-49 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected chronic bronchitis variant of chronic obstructive pulmonary disorder on an extraschedular basis under 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Eric A. Gang, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Sopko, Counsel INTRODUCTION The Veteran had active service April 1962 to January 1964. This matter comes to the Board on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 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 appellant if further action is required. REMAND A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (emphasis added). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU from August 1, 1998. This is the date the Veteran, in his TDIU application which VA received in October 2016, stated that he became "too disabled to work." See 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue would be addressed if such a referral was made. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular evaluation in the first instance. Rather, the Board's analysis is limited to merely granting or denying the Veteran's request for referral for an earlier effective date for TDIU on an extraschedular basis. Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). Nevertheless, the Board may adjudicate whether a referral to the Under Secretary for Benefits or Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). That is, where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Once a referral for an extraschedular rating under § 4.16(b) is made by the Board, if, and only if, the appropriate official has determined that an extraschedular evaluation under § 4.16(b) is not warranted does the Board have jurisdiction to decide the claim on the merits when it returns. Accordingly, the Board must make the initial determination as to whether referral to the Director of Compensation Service is appropriate for an extraschedular evaluation under § 4.16(b). VA has service connected the Veteran for one disability - "chronic bronchitis variant of chronic obstructive pulmonary disease." VA has rated this disability as 30 percent disabling since April 21, 1993. Therefore, the Veteran does not satisfy the threshold minimum percentage rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a). Consequently, the only remaining question in this case is whether there is plausible evidence the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disability for purposes of a possible extraschedular TDIU evaluation. The Veteran's claim is two-pronged. First, he contends that the disability causes "nocturnal awakening with dyspnea and wheezing" - as he reported during his April 1998 VA compensation examination and has consistently reported since. This results in daytime hypersomnolence and the inability to concentrate. Second, the medications he has used, or currently uses, to treat his disability compound these effects, leaving him "drowsy or sedated," as described in a March 1999 statement. Indeed, the Veteran, through his attorney, as recently as May 2017, contended that the disability "posed great difficulties in his employment due to extended absences he had to undertake, and due to the exhausting side effects that were caused by the medications." The Board finds there is some plausible evidence of unemployability from August 1, 1998. In addition to the foregoing paragraph, the Veteran, through his attorney, submitted a May 2017 report from a vocational expert. The expert concluded that the Veteran "has been unable to maintain substantially gainful employment on a regular and consistent basis even at the sedentary level of work since October of 1998 when it became impossible for him to maintain a regular and predictable schedule without excessive absenteeism." Therefore, although it will result in additional delay in adjudicating the appeal, a remand is required for the Director of Compensation Service to determine if an extraschedular rating is warranted for a TDIU under 38 C.F.R. § 4.16(b). (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.) Accordingly, the case is REMANDED for the following action: 1. Submit the issue of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. An extraschedular evaluation under 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Also, the Veteran's employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered under 38 C.F.R. § 4.16(b). In rendering the above opinion, the Director of Compensation Service must expressly consider and address the plausible evidence of unemployability noted in the May 2017 private vocation expert report. 2. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Thereafter, consider all of the evidence of record and readjudicate the issue of entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16(b). If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. 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). _________________________________________________ KELLI A. KORDICH 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).