Citation Nr: 1808832	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  13-04 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Z. Maskatia, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to September 1971.

This matter is on appeal from a rating decision in September 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.    

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Unfortunately, the appellant's claim for entitlement to a total disability rating based on individual unemployability must be remanded for further development.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration.

In this case, while the Veteran filed for a TDIU rating in June 2012, his claim is considered part of his application filed in December 2010 for an increased rating for both of his service-connected disabilities.  His service connected disabilities consist of demyelinating disease (multiple sclerosis in partial remission), rated at 50 percent from September 18, 1971, as well as major depressive disorder, rated at 50 percent from July 1, 2011.  The combined rating is 50 percent from September 18, 1971, and 80 percent from July 1, 2011.  Thus, the Veteran has not met the schedular criteria of 38 C.F.R. § 4.16(a) for the entire appeal period -only after July 1, 2011.  

Nevertheless, TDIU may be granted alternatively on an extra-schedular basis under § 4.16 (b) if it is established that the Veteran was indeed unable to seek or maintain substantially gainful employment on account of the service-connected disabilities.  In this case, the Veteran had not worked since 2005, before the period on appeal.  According to a letter from his psychologist dated January 2011, the Veteran had to stop working because he could not walk for any meaningful distance, nor stand for a meaningful period of time.  A record obtained from the Social Security Administration documents the Veteran's disability finding with an onset date of October 1, 2005.

However, before the Board may determine whether the Veteran is warranted on an extra-schedular basis in the first instance, and must refer the matter to the Director of Compensation Service for the initial adjudication.  See 38 C.F.R. § 4.16 (b) (2017); Barringer v. Peake, 22 Vet. App. 242 (2008); Wages v. McDonald, 27 Vet. App. 233 (2015).  Thus, in the present case, referral to the Director of Compensation Service, for consideration of entitlement to TDIU under 38 C.F.R. § 4.16 (b) is warranted.

Accordingly, the case is REMANDED for the following action:

1. Obtain all treatment records in the possession of the VA Medical Center in Columbia, South Carolina since February 2013.

If the Veteran has received additional private treatment records, he should be afforded an appropriate opportunity to submit them. 

2.  After conducting any development that is deemed warranted, refer the issue of entitlement to extraschedular TDIU prior to July 1, 2011, to the Director of Compensation Service for adjudication pursuant to 38 C.F.R. § 4.16(b).  

3.  If the benefits sought remain denied, furnish the appellant a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board.

The appellant 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. §§ 5109B, 7112 (2014).




_________________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (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).