Citation Nr: 1805989 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-09 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability rating due to individual unemployability. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1977 to August 1988 This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Louisville, Kentucky Regional Office (RO) of the Department of Veterans Affairs (VA) wherein in the pendency of the appeal the Veteran raised the issue of unemployability due service connected disabilities in April 2011. REMAND The Veteran first raised the issue of unemployability due to his service connected disabilities in an April 27, 2011, VA treatment note as acknowledged in the June 2014 Board remand. Turning to the issue of unemployability, the Veteran has four service-connected disabilities: patellofemoral traumatic arthritis in the left knee rated at 10 percent, left wrist degenerative joint disease rated at 10 percent, mild degenerative joint disease and mild left inversion instability of the left ankle rated at 10 percent, and tinnitus rated at 10 percent. The Veteran's service-connected disabilities do not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The August 2016 examination reported that the Veteran's mild degenerative joint disease and mild left inversion instability of the left ankle would have mild impact on gainful physical occupation due to left ankle instability such as climbing stairs or prolonged walking. Veteran's mild degenerative joint disease and mild left inversion instability of the left ankle (previously rated as ligamentous laxity) would have no impact on gainful sedentary occupation; the Veteran's patellofemoral traumatic arthritis, left knee would have moderate impact on gainful physical occupation due to pain, decreased range of motion such as climbing stairs or prolonged walking, ambulating across uneven ground or shoveling dirt. Veteran's patellofemoral traumatic arthritis, left knee would have no impact on gainful sedentary occupation; and the Veteran's left wrist degenerative joint disease (nondominant) would have mild impact on gainful physical occupation due to pain, decreased range of motion such as lifting buckets, using power tools or hand-tools in left wrist or shoveling dirt. Veteran's left wrist degenerative joint disease (nondominant) would have mild impact on gainful sedentary occupation such as typing or lifting heavy file boxes, reasonable accommodations would include a desk job with little typing. The Veteran's occupational history comprises of work 11 years in a factory setting and nine years in HVAC. The Veteran's educational history includes a General Equivalency Diploma (GED). Given the Veteran's education level and work history, along with the impact of his service-connected disabilities on his ability to perform physical and sedentary occupations, the Board finds that the Veteran's TDIU claim should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) (2017). Accordingly, the case is REMANDED for the following action: 1. In accordance with 38 C.F.R. § 4.16(b) (2017), the RO should refer the Veteran's TDIU claim to the Director of Compensation Service for extraschedular consideration as to whether his service-connected disabilities render him unemployable. 2. Then readjudicate the claim. If this benefit is not granted, the Veteran must be furnished a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2013). ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).