Citation Nr: 18141769 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-13 844 DATE: October 11, 2018 ORDER A total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. REMANDED The issue of an initial rating in excess of 80 percent for the Veteran’s end stage renal disease with kidney transplant residuals is remanded. The issue of the initial rating in excess of 10 percent for the Veteran’s hyperparathyroidism is remanded. The issue of an effective date prior to June 13, 2012, for the award of service connection for an unspecified bipolar and related disorder is remanded. The issue of an initial rating in excess of 40 percent for the Veteran’s unspecified bipolar and related disorder is remanded. The issue of an effective date prior to June 13, 2012, for the award of service connection for kidney transplant scar residuals is remanded. The issue of an initial rating in excess of 40 percent for the Veteran’s kidney transplant scar residuals is remanded. FINDINGS OF FACT 1. Service connection is in effect for end stage renal disease with kidney transplant residuals rated as 80 percent disabling; an unspecified bipolar and related disorder rated as 40 percent disabling; hyperparathyroidism rated as 10 percent disabling; and kidney transplant scar residuals rated as noncompensable. The Veteran has a combined 90 percent service-connected rating. 2. The service-connected disabilities are of such severity as to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1987 to July 1991. He served in Southwest Asia. TDIU The Veteran asserts that the service connected disabilities render him unable to secure and follow any form of substantially gainful employment. A TDIU may be assigned where the combined schedular rating for the service connected disabilities is less than 100 percent when it is found that the service connected disabilities are sufficient to render the veteran unemployable without regard to either his advancing age or the presence of any nonservice connected disorders. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341. A TDIU is assigned where the schedular rating is less than total, 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. If there is only one such disability, that disability shall be rated 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). Service connection is in effect for end stage renal disease with kidney transplant residuals rated as 80 percent disabling; an unspecified bipolar and related disorder rated as 40 percent disabling; hyperparathyroidism rated as 10 percent disabling; and kidney transplant scar residuals rated as noncompensable. The Veteran has a combined 90 percent service-connected rating. Therefore, the Veteran meets the schedular criteria for consideration for a TDIU. 38 C.F.R. § 4.16 (a). In a January 2012 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he had last been employed on a full-time basis in May 2008 as an insurance salesman. He stated that he left that employment due to his kidney transplant. The report of a March 2016 Department of Veterans Affairs (VA) kidney examination states that the Veteran was “unable to work full time due to lack of energy/stamina” due to the service connected kidney disorder. The service-connected disabilities have a 90 percent combined rating. A VA examiner concluded that the Veteran was unable to perform full-time employment due to the service-connected kidney disability. He has been not employed on a full time basis since May 2008. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board of Veterans’ Appeals (Board) finds that the service-connected disabilities make the Veteran unable to secure or follow a substantially gainful occupation. Therefore, the claim for a TDIU is granted. 38 C.F.R. § 4.16. REASONS FOR REMAND 1. The issues of an initial rating in excess of 80 percent for the Veteran’s end stage renal disease with kidney transplant residuals and an initial rating in excess of 10 percent for his hyperparathyroidism are remanded. A March 2016 VA treatment record states that the Veteran reported ongoing treatment for the service connected post kidney transplant residuals from a primary care physician. Clinical documentation of the cited treatment record is not of record. Clinical documentation dated after March 2016 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. The issues of an effective date prior to June 13, 2012, for the award of service connection for an unspecified bipolar and related disorder; an initial rating in excess of 40 percent for the Veteran’s unspecified bipolar and related disorder; an effective date prior to June 13, 2012, for the award of service connection for kidney transplant scar residuals; and an initial rating in excess of 40 percent for the Veteran’s kidney transplant scar residuals are remanded. In July 2016, the Veteran submitted a notice of disagreement with the effective dates of the awards of service connection for both an unspecified bipolar and related disorder and kidney transplant scar residuals and the initial ratings assigned for those disabilities. Where a veteran has submitted a timely notice of disagreement with an adverse decision and the Agency of Original Jurisdiction has not subsequently issued a statement of the case addressing the issue, the Board should remand the issue to the Agency of Original Jurisdiction for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240 241 (1999). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for the service connected kidney and hyperparathyroidism disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records dated after March 2016. 3. Issue a statement of the case which addresses the issues of an effective date prior to June 13, 2012, for the award of service connection for an unspecified bipolar and related disorder; an initial rating in excess of 40 percent for the Veteran’s unspecified bipolar and related disorder; an effective date prior to June 13, 2012, for the award of service connection for kidney transplant scar residuals; and an initial rating in excess of 40 percent for the Veteran’s kidney transplant scar residuals. Notify the Veteran of his appeal rights and that he must submit a timely substantive appeal if he wants appellate review of those claims. If a timely substantive appeal is received, return those claims to the Board. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel