Citation Nr: 18141189 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 11-16 102 DATE: October 9, 2018 REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from September 1973 to June 1974. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In an April 2014 decision, the Board found the issue of entitlement to a TDIU was raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the issue for initial adjudication. Subsequently, in a September 2016 rating decision, a TDIU was denied. The instant matter was previously before the Board in September 2017, where the issue on appeal was denied. The Veteran appealed the September 2017 Board decision denying a TDIU to the United States Court of Appeals for Veterans Claims (Court). In an Order dated March 2018, the Court granted a Joint Motion for Partial Remand (JMR), which remanded the TDIU issue on appeal back to the Board for development consistent with the JMR. Per the JMR, the parties agreed that the Board failed to provide adequate reasons and basis for its finding that the Veteran’s unemployability was due to both service connected and non service connected disabilities. In compliance with the JMR, the Board now remands the rating issue on appeal for additional development. The Veteran testified from San Antonio, Texas, at a December 2013 Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Entitlement to a TDIU 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). 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 a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. The Veteran is currently service connected for bilateral knee disorders, hearing loss, and tinnitus, with a combined rating percentage of 60 percent. As discussed in the September 2017 Board decision, the Veteran does not meet the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration of TDIU. Further, in its September 2017 decision, the Board found that, while the Veteran was unemployable, the unemployability was due to a combination of service connected and non service connected disabilities. As such, the Board found referral to the Director of Compensation and Pension Service for consideration of a TDIU under 38 C.F.R. § 4.16(b) to not be warranted. Since the case was returned to the Board, VA received a June 2018 employability evaluation from a vocational disability expert. Per the employability report, the vocational expert reviewed the evidence of record and interviewed the Veteran. Further, the vocational expert considered the Veteran’s employment history. At the conclusion of the evidence review, the vocational expert opined that it was more likely than not that the Veteran was unable to secure and follow substantially gainful employment, to include sedentary work, since May 2010 due to the service connected knee, tinnitus, and hearing loss disabilities. Specifically, the vocational expert discussed the physical deficits, including difficulty standing and walking, and fatigue due to the service connected knee disabilities. The vocational expert also addressed difficulty concentrating and paying attention due to the severity of the knee pain in conjunction with the tinnitus and hearing loss. Given the results of the June 2018 employability evaluation, the Board finds that the Veteran’s service connected disabilities are of sufficient severity to raise a question as to whether the Veteran is precluded from obtaining or maintaining substantially gainful employment due to the service connected knee, tinnitus, and hearing loss disabilities alone; therefore, referral to the Director, Compensation and Pension Service, for TDIU consideration under 38 C.F.R. § 4.16(b) is warranted. The matter is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the service connected disabilities. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disabilities, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the service connected disabilities, not already of record, for the period from February 2016. 3. Refer the TDIU issue to the VA Under Secretary for Benefits or the VA Director of Compensation and Pension Service for adjudication of entitlement to a TDIU under 38 C.F.R. § 4.16(b). 4. Then, readjudicate the issue of entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel