Citation Nr: 1808650 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-28 916 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REMAND The appellant is a veteran (the Veteran) who had active duty service from November 1968 to November 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the RO in Cleveland, Ohio. In February 2015, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge at the VA Central Office in Washington, DC. The subject of the hearing was a psychiatric disability rating issue, which has since been decided. However, the testimony is also pertinent to the TDIU issue. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103 (2017). In April 2015, the Board granted an increased rating of 50 percent for the service-connected psychiatric disability and denied any higher ratings. The psychiatric rating claim had been the subject of a remand from the United States Court of Appeals for Veterans Claims (Veterans Court). The Board's decision with respect to the psychiatric disability rating is final. See 38 C.F.R. § 20.1100 (2017). The Board also determined that the issue of TDIU entitlement had been reasonably raised by the record and remanded the issue for additional evidentiary development. The RO denied referral of the TDIU claim for consideration of an extraschedular rating. The appeal has since been returned to the Board for further appellate action. The Board acknowledges several allegations in the Informal Hearing Presentation to the effect that service connection should be granted for stroke residuals, and cardiovascular problems, to include hypertension. The Veteran is advised that these allegations do not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.155(a). The AOJ should notify the veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. The Veteran's service-connected disability is limited to a psychiatric disability, which is rated at 50 percent disabling. For a single service-connected disability, VA regulations require that the disability be at least 60 percent disabling to grant TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. The Board itself cannot assign an extra-schedular rating in the first instance. The Board's consideration is limited to whether to refer the case to the Director of Compensation and Pension Service for an extra-schedular evaluation. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). The Veteran's work history is limited to occupations involving timber cutting and truck driving. He last worked in 2005 and has a high school education. In this case, a November 2017 VA Mental Disorders Examination notes that the Veteran has low frustration and stress tolerance, intrusive thoughts, sleep problems, and difficulty with concentration resulting from his psychiatric disability. These would continue to adversely affect any work activity. He would also be able to perform tasks that are only simple and repetitive in nature given problems he would have processing more complex instructions. He would be able to relate to coworkers only on a superficial level, and could not tolerate working with the public. Overall, he would have problems tolerating the stress of a typical workweek. Private physician E.M. Tripi opined in a January 2015 report that the Veteran's mental state is such that he would not be able to obtain and sustain substantial, gainful work activity; however, she reported that the Veteran's nonservice-connected cerebrovascular accident contributes to and exacerbates his mental symptoms and impairment, particularly impairment of memory and judgment. In this case, the Board finds that the Veteran's service-connected psychiatric disorder is productive of a significant level of occupational impairment. The Board finds that the criteria for extraschedular referral have been met. Accordingly, the case is REMANDED for the following action: 1. Refer the TDIU issue to the Director of Compensation and Pension Service for an extra-schedular evaluation. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). 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 2014). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: The American Legion 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).