Citation Nr: 1825451 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-29 019A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 21, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from April 2004 to October 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from June 2011 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of entitlement to a rating in excess of 10 percent for a low back disability, and the issue of entitlement to TDIU prior to December 21, 2011, on an extraschedular basis, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VETERAN'S CONTENTIONS The Veteran currently has a TDIU from December 21, 2011. He asserts that his service-connected low back disability and PTSD have prevented him from maintaining employment since January 2011, when he was last self-employed as an auto mechanic, such that a TDIU is warranted prior to December 21, 2011. FINDING OF FACT The Veteran's post-traumatic stress disorder (PTSD) is rated as 70 percent disabling from December 21, 2011, and 50 percent disabling before that date. The Veteran's combined disability rating is 80 percent from December 21, 2011, and 60 percent before that date. CONCLUSION OF LAW The criteria for a TDIU before December 21, 2011 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). As noted above, before December 21, 2011, the Veteran had no single disability rated at least 60 percent disabling, nor did he have a combined disability rating of at least 70 percent. Therefore, the criteria for a TDIU on a schedular basis are not met before that date. ORDER A schedular TDIU before December 21, 2011 is denied. REMAND Extraschedular TDIU Notwithstanding the above, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. See 38 C.F.R. § 4.16(b). Where this is warranted, the claim must first be referred by the AOJ to the Director of the Compensation Service for extraschedular consideration. In his November 2012 application for increased compensation based on unemployability, the Veteran reported that he was last employed in January 2011, and stated: "I left [REDACTED] October 2010 due to chronic back pain and I lashed out on a customer. When I tried to work again (self-employed) I could barely complete a brake job replacement and could not move for a couple days following the work. Also I was let from Spiratex due to my condition." The Veteran is competent to report his employment situation and the reasons he felt he was unable to work, and the Board finds him credible. As the evidence suggests that the Veteran was unable to secure or follow a substantially gainful occupation prior to December 21, 2011, entitlement to TDIU on an extraschedular basis has been raised, and the issue must be remanded for referral to the Director of the Compensation Service for extraschedular consideration. Low Back Disability The Veteran's spine disability is currently rated 20 percent from February 25, 2011, and 10 percent before then. The RO awarded the Veteran's 20 percent rating in a June 2011 rating decision in response to his February 2011 non-initial increased rating claim. The Veteran filed a notice of disagreement in December 2011. Notwithstanding the Veteran's disagreement with the evaluation of his disability reflected in the June 2011 rating decision, he has not been afforded a VA examination since April 2011. As it appears that his condition has worsened since then, a new VA examination is warranted to determine the current severity of the Veteran's disability. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current level of impairment resulting from his service-connected low back disability. The claims file should be made available to the examiner for review, and all necessary tests should be conducted. 3. Refer the issue of entitlement to a TDIU prior to December 21, 2011 to the Director of the Compensation Service for extraschedular consideration. 4. After completing the above actions, and any additional action deemed warranted, readjudicate the claim on appeal in light of all the evidence of record, including the above directed VA examination and all evidence submitted or acquired since June 2016. In the event that an increased rating for the low back disability is granted, and the schedular criteria for a TDIU are met prior to December 21, 2011, reconsider the Veteran's entitlement to TDIU on a schedular basis for the period prior to that date. If the benefits sought on appeal otherwise remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if 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. ______________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).