Citation Nr: 1808690 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-04 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board notes that during the course of the appeal, the Veteran moved to Tennessee. Therefore, jurisdiction has been transferred to the Nashville, Tennessee RO. In pertinent part of an April 2016 decision, the Board found that the Veteran had raised the claim for a TDIU and it was considered part of the increased rating claim on appeal in accordance with Rice v. Shinseki, App. 447 (2009). The claim for TDIU was remanded for additional development. As will be discussed further below, the Board finds that an additional remand is necessary. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to a total disability rating based upon individual unemployability (TDIU). The Board finds that further development is needed prior to the adjudication of the Veteran's claim of entitlement a TDIU. VA regulations provide for a TDIU rating when the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a) (2017). Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16 (a), may receive extraschedular consideration. See 38 C.F.R. § 4.16 (b). Specifically, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). Id. The rating board will include a full statement as the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Id. The Veteran is currently rated for the following service-connected disabilities: bilateral hearing loss rated as 40 percent disabling; tinnitus rated as 10 percent disabling; residuals of pilonidal cyst rated as 10 percent disabling; subluxation of the distal ulnar and arthritic changes to the right wrist (associated with metacarpal fracture residuals) rated as 10 percent disabling; and right 5th metacarpal fracture residuals rated as noncompensable. The Veteran's current combined disability rating is 60 percent (effective February 2010). As such, the Veteran's combined disability rating does not meet the percentage requirements of 38 C.F.R. § 4.16 (a) for consideration of a TDIU rating for any period on appeal. As discussed above, the failure to meet the schedular percentage requirements does not preclude the availability of a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16 (b) (2016). Notably, the record shows that the Veteran has been primarily employed as a laborer, as an oil/gas burner, as a carpenter, and as a steel cutter and fabricator. The Veteran lacks education and has been unemployed since 1997. The Veteran asserts that the combination of his service-connected disabilities preclude him from performing his occupation. A September 2017 VA examination notes that the Veteran's bilateral hearing disability affects his ability to work due to communication issues, but that with amplification the Veteran should be able to work in any environment. However, a June 2017 VA examination of the Veteran's hands and fingers reports that the Veteran's right 5th metacarpal fracture residuals precludes him from gainful occupations requiring sustained or repetitive gripping, torqueing, pushing or pulling with his right hand. Although in the October 2017 the AOJ noted that Social Security Administration (SSA) records show that the Veteran was found to be permanently and totally disabled due to psoriatic arthritis and lower limb fracture, such is not dispositive for VA purposes. Given the evidence of record which shows that the Veteran's service-connected hand disability impacts his ability to maintain employment as a laborer, the Board remands the Veteran's TDIU claim for referral to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16 (b). The Board cannot assign an extraschedular rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular TDIU claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding and relevant treatment records. Should such exist, associate them with the Veteran's electronic claims file. 2. Refer the Veteran's TDIU claim to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16 (b). 3. Upon response, the RO must undertake any adjudicative actions necessary. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the Veteran's TDIU claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond. Thereafter, return the matter to the Board for further adjudication, if otherwise in order The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL A. PAPPAS 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).