Citation Nr: 1808515 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-03 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 16, 2011. (The issue of whether the recoupment of severance pay in the amount of $27,539.00 was proper is addressed in a separate Board decision.) REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board denied the claim of entitlement to a TDIU in March 2017. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (the Court) and, by a September 2017 Joint Motion for Remand (Joint Motion), the Court vacated the Board's decision and remanded the claim to comply with the Joint Motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board seeks a retrospective opinion with regard to the Veteran's claim for a TDIU prior to June 16, 2011. The Board notes that since June 16, 2011, the Veteran has been in receipt of a 100 percent schedular rating for his combined service-connected disabilities and has narrowed his claim to the period prior to that date. The Joint Motion directs the Board to analyze the cumulative functional impairment of all of the Veteran's service-connected disabilities in effect prior to June 16, 2011. In order to accurately comply with this directive, the Board finds that a new VA opinion should be obtained. Prior to June 16, 2011, the Veteran's service-connected disabilities were chronic gastritis/duodenitis, rated as 30 percent disabling; a left shoulder disability, rated as 20 percent disabling to May 12, 2011, and as 30 percent disabling thereafter; left hallux valgus, rated as 10 percent disabling; scar of the left first metatarsal, rated as 10 percent disabling; scar of the right first metatarsal, rated as 10 percent disabling; and right hallux valgus, rater as 10 percent disabling. The combined disability rating of those disabilities was 60 percent prior to May 12, 2011, and as 70 percent prior to June 16, 2011. Consequently, he did not meet the schedular requirements for a TDIU prior to May 12, 2011. See 38 C.F.R. § 4.16(a) (2017). As the evidence of record suggests that the Veteran may have not have been able to obtain substantially gainfully employment during the period on appeal, consideration of an extraschedular TDIU rating must be completed on remand. 38 C.F.R. § 4.16 (b). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the cumulative impact of his service-connected disabilities on his occupational functioning from November 2006 to June 2011. Based on a review of the claims file (to include the previous VA examination opinions on the matter, the private physician opinions supportive of the Veteran's claim, and the recent vocational assessment) and interview with and examination of the Veteran, the examiner is requested to assess the cumulative impact of the Veteran's service-connected disabilities on his occupational functioning for the period from November 2006 to June 2011. When completing this assessment, the examiner should only consider the then service-connected gastritis/duodenitis, left shoulder disability, and bilateral hallux valgus with scars. The examiner should not consider the later service-connected left hip disability, right and left knee disability, lumbar spine disability, or radiculopathy of the lower extremities. The examiner is requested to provide a thorough rationale for any opinion provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should explain why a definitive opinion cannot be provided. 3. If it is determined that the Veteran is unemployable, refer the claim of entitlement to a TDIU prior to June 16, 2011 to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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 (2012). _________________________________________________ M. E. LARKIN 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).