Citation Nr: 1807721 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 08-24 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Michael G. Smith, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Brown, Associate Counsel INTRODUCTION The Veteran had active duty in the Army from November 1990 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In his August 2008 Form 9 Appeal, the Veteran raised the issue of TDIU while challenging the ratings assigned for his back and bilateral knee disabilities. As noted in the May 2017 Board remand, the January 2016 Board decision denied entitlement to TDIU. The Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court). In November 2016, the Court granted a Joint Motion for Remand, vacating and remanding for further action the January 2016 Board decision denying entitlement to TDIU. In May 2017, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ), and this case has been returned for appellate consideration. In October 2017, the Veteran and his spouse presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a September 2004 statement in support of his claim, the Veteran stated that he could no longer work as he could not sit or stand for any length of time due to his bilateral knee and back disabilities. He began taking hydrocodone for his pain, and said that he would have been unable to qualify to continue his job with the Department of Transportation due to his medication. See October 2017 Board hearing. In December 2004, the Veteran filed a Form 21-8940, Application for Increased Compensation Based on Unemployability. He described driving a sweeper truck up until 2004, when the pain in his back caused his legs to go numb and it became unsafe for him to drive. In August 2011, the Veteran again filed a Form 21-8940, where he asserted that his bilateral knee and back service-connected disabilities prevented him from securing or following any substantially gainful occupation. In an August 2011 memorandum, a vocational rehabilitation counselor stated that the Veteran's posttraumatic stress disorder, anger management, memory, and physical limitations affected his ability to find suitable employment and prevented him from retraining in a new field of study. In an October 2014 Residual Functional Capacity Form, the examiner answered no in response to a question regarding whether he believed that the Veteran could continue or resume work at current or previous employment, stating that the Veteran would not be able to pass basic job duties. In a June 2016 rating decision, the RO increased the Veteran's evaluation of residuals of lumbar muscle strain with degenerative disc disease and IVDS, to 40 percent, effective February 8, 2016, bringing his combined rating to 80 percent. In light of this decision, the Veteran has met the schedular criteria for a TDIU since February 8, 2016. The Board notes that the Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for a TDIU prior to February 8, 2016. However, VA regulations provide that if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular 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). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration 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). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claim. Thus, the Board refers the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). Any outstanding medical records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. After receiving the necessary authorization, obtain and associate with the claims file all of the Veteran's relevant outstanding private and VA Medical Center treatment records. If after making such a request, a negative response is received, this must be documented in the claims file and the Veteran must be properly informed. 2. Schedule the Veteran for an appropriate VA examination in conjunction with his TDIU claim. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. Specifically, the examiner should determine whether the Veteran's service-connected disabilities (residuals of lumbar muscle strain with degenerative disc disease and IVDS, adjustment disorder with depressed mood, patellofemoral syndrome in bilateral knees, radiculopathy in bilateral lower extremities for the sciatic nerve, radiculopathy in bilateral lower extremities for the femoral nerve, and erectile dysfunction) render him unable to secure or follow a substantially gainful occupation. Consideration should be given to the Veteran's lay statements (including the one from September 2004), the August 2011 memorandum, the October 2014 Residual Functional Capacity Form, and the October 2017 Board hearing regarding the Veteran's unemployability. If the evidence is not relevant, the examiner should explain why. (a) Describe the Veteran's employment history. (b) Elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. (c) Provide a full description of the effects, to include all associated limitations, of each of the Veteran's service-connected disabilities on his daily activities, to include his employability, taking into consideration his level of education, any special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. (d) Then, ascertain the combined impact of the Veteran's service-connected disabilities on his ability to work. A written copy of the report should be associated with the claims folder. 3. Refer the Veteran's case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of whether an extra-schedular rating is warranted for the service-connected disabilities under 38 C.F.R. § 4.16(b). The response from the Under Secretary for Benefits or the Director of Compensation and Pension Service must be included in the claims file. 4. Then, readjudicate the TDIU claim. If the determination remains less than fully favorable, the Veteran and his attorney must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ LANA K. JENG 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).