Citation Nr: 1749074	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO. 10-42 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to April 29, 2014.

2. Entitlement to an effective date earlier than September 15, 2009, for service connection for bilateral hearing loss on the basis of clear and unmistakable error (CUE) in a March 1992 rating decision that denied service connection for bilateral hearing loss.

3. Entitlement to a total disability rating due to individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to November 1968.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 and May 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Board remanded this matter in March 2015 for additional development.

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Prior to November 6, 2012, the Veteran's bilateral hearing loss was best represented by VA audiological examinations that show a rating in excess of 10 percent is not warranted.

2. From November 6, 2012, to April 29, 2014, the Veteran's bilateral hearing loss is best represented by VA audiological examinations that show a rating of 20 percent but no higher is warranted.

3. The Veteran's previous claim for service connection for bilateral hearing loss was denied in a March 1992 rating decision. The Veteran did not submit a notice of disagreement, so as a consequence, that decision has become final based on the evidence then of record.

4. The prior March 1992 rating decision that considered the claim for service connection for bilateral hearing loss, did not involve CUE; it was supported by evidence then of record and was consistent with the law and regulations then in effect. There is no showing that the correct facts known at the time were not before the adjudicator, that the law then in effect at that time was incorrectly applied, and that the result would have been manifestly different to the extent any error did exist.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent prior to November 6, 2012, for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, Tables VI, VI(A), VII, Diagnostic Code 6100 (2016).

2. The criteria for a rating of 20 percent from November 6, 2012, to April 29, 2014, for bilateral hearing loss have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, Tables VI, VI(A), VII, Diagnostic Code 6100 (2016).

3. The March 1992 rating decision denying entitlement to bilateral hearing loss did not contain CUE. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (a) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2016); 38 C.F.R. § 3.159 (2016); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Notice to a claimant should be provided at the time or immediately after VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103 (a) (West 2016); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the Veteran was provided with 38 U.S.C.A. § 5103(a)-compliant notice in September 2009. 

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to the claim decided herein. The examinations adequately provide the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

With regard to the CUE claim, the duties to notify and assist have no application to allegations of CUE as a matter of law, regardless of whether the Board or RO issued the earlier decision in question. Livesay v. Principi, 15 Vet. App. 165 (2001); Parker v. Principi, 15 Vet. App. 407 (2002); 38 U.S.C.A. §§ 5109A (a), 7111(a) (West 2014); 38 C.F.R. §§ 20.1400-20.1411 (2016). 

The statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim where the law, and not the underlying facts or development of the facts, is dispositive in a matter. Manning v. Principi, 16 Vet. App. 534 (2002).


II. Increased Ratings

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1 (2016). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016).

The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999).

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85 (2016).

Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz . To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2016).

Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII (2016). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86 (2016). When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral for hearing impairment from Table VI or Table VIa, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2016).

The assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are made. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran's bilateral hearing loss disability is rated as 10 percent prior to April 29, 2014, under Diagnostic Code 6100. 38 C.F.R. § 4.85 (2016).

A July 2009 private audio examination report shows pure tone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
AVG
RIGHT
25
55
80
95
66.25
LEFT
10
50
80
85
56.25

Speech audiometry revealed speech recognition ability of 85 percent in the right ear and 92 percent in the left ear. Word recognition testing material was not known.

A September 2009 VA audio examination report shows pure tone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
AVG
RIGHT
35
55
85
90
66.25
LEFT
15
65
80
85
61.25

Speech audiometry, using Maryland CNC tests, revealed speech recognition ability of 80 percent in the right ear and 84 percent in the left ear. 

A March 2010 VA audio examination report shows pure tone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
AVG
RIGHT
45
60
80
85
67.5
LEFT
5
55
80
85
56.25

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 72 percent in the left ear. 

A November 2012 VA audio examination report shows pure tone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
AVG
RIGHT
40
60
90
105
73.75
LEFT
20
70
85
90
66.25

Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 80 percent in the left ear. 

An October 2013 VA audio examination report shows pure tone thresholds, in decibels, were as follows:



HERTZ

1000
2000
3000
4000
AVG
RIGHT
35
65
90
105
73.75
LEFT
25
65
85
90
66.25

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left ear. 

Analyzing the results of the September 2009 VA audiological results, with mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, the Veteran's average hearing loss of 66.25 decibels in the right ear, 61.25 decibels of hearing loss in the left ear, together with hearing discrimination scores of 80 percent in the right ear and 84 percent in the left ear, results in Level IV impairment in the right ear and Level III in the left ear under Table VI, and when combined results in a 10 percent rating for hearing loss.  

Analyzing the results of the March 2010 VA audiological results, with mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, the Veteran's average hearing loss of 67.50 decibels in the right ear, 56.25 decibels of hearing loss in the left ear, together with hearing discrimination scores of 80 percent in the right ear and 84 percent in the left ear, results in Level IV impairment in the right ear and Level III in the left ear under Table IV, and when combined results in a 10 percent rating for hearing loss.  

Analyzing the results of the November 2012 VA audiological results, with mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, the Veteran's average hearing loss of 73.75 decibels in the right ear, 66.25 decibels of hearing loss in the left ear, together with hearing discrimination scores of 72 percent in the right ear and 80 percent in the left ear, results in Level VI impairment in the right ear and Level IV in the left ear under Table IV, and when combined results in a 20 percent rating for hearing loss.  

Analyzing the results of the October 2013 VA audiological results, with mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, the Veteran's average hearing loss of 73.75 decibels in the right ear, 66.25 decibels of hearing loss in the left ear, together with hearing discrimination scores of 72 percent in the right ear and 80 percent in the left ear, results in Level III impairment in the right ear and Level III in the left ear under Table IV, and when combined results in a noncompensable rating for hearing loss.  

Initially, the Board notes that at no time during the appeal period were each of the four hearing thresholds 55 decibels or greater, so no provision of 38 C.F.R. § 4.86, used to evaluate exceptional patterns of hearing impairment, is applicable. 38 C.F.R. § 4.86(a) (applicable where all pure tone threshold levels were 55 dB or higher at 1000, 2000, 3000 and 4000 Hz), 38 C.F.R. § 4.86(b) (applicable where the pure tone threshold is 70 dB or more at 2000 Hz). 

There is no indication that the speech discrimination test used in any cited evaluation is not appropriate, and no examiner has certified that speech discrimination testing is not appropriate, so use of Table VI(A), used to evaluate hearing impairment based only on pure tone thresholds averages, is not applicable. 38 C.F.R. § 4.85 (2016). 

The Board finds, first, that prior to November 6, 2012, the evidence does not show that the Veteran's hearing loss rose to the level of a rating in excess of 10 percent disabling. As discussed above, the findings in the September 2009 and March 2010 audiology reports both support a 10 percent rating. There is no evidence in the record suggesting that the Veteran has, during the relevant time period prior the November 6, 2012, had hearing level acuity that corresponds with a rating in excess of 10 percent. 

Therefore, the Board finds that a rating in excess of 10 percent prior to November 6, 2012, is not warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2016).

After a review of the evidence of record, the Board finds that a rating of 20 percent is warranted from November 6, 2012, to April 29, 2014, under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2016), as the evidence shows that the November 2012 VA audiological examination indicated that the Veteran's hearing disability resulted in a 20 percent rating. Thus, entitlement to a 20 percent rating for bilateral hearing loss from November 6, 2012, to April 29, 2014, is granted.

The Board further finds, however, that from November 6, 2012, to April 29, 2014, the evidence does not show that the Veteran's hearing loss rose to the level of a rating in excess of 20 percent disabling. The Board finds that the November 2012 and October 2013 VA audiological examination reports do not support a rating in excess of 20 percent. There is no evidence in the record suggesting that the Veteran has, during the relevant time period from November 6, 2012, to April 29, 2014, had hearing level acuity that corresponds with a rating in excess of 20 percent. 

The Board is sympathetic to the Veteran's position that higher ratings are warranted for his service-connected bilateral hearing loss. However, the audiometric examination results, as compared to the rating criteria, only warrant a rating of 10 percent prior to November 6, 2012, and a rating of 20 percent-but not higher-from November 6, 2012, to April 29, 2014. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. Extraschedular Rating

The Board has further considered whether the increased rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. Where, as here, those criteria are not inadequate, the analysis does not need to proceed any further.

In this case, the manifestations and functional impairments of the Veteran's bilateral hearing loss are fully contemplated in the schedular criteria for the 10 and 20 percent ratings assigned during the relevant appeal periods. Specifically, the schedular criteria under DC 6100 for hearing impairment considers the various levels of severity and/or impairment, and provides for higher ratings for more severe manifestations and/or impairments if such develop in the future. The Board also finds that, with regard to the Veteran's statements about functional impact, i.e., difficulty understanding speech, especially in groups where background noise is present, his speech discrimination abilities were specifically measured by VA audiological examinations and this functional impairment has thus been taken into account as part of the currently assigned evaluation. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321 (b)(1) for bilateral hearing loss.

IV. Clear and Unmistakable Evidence

The Veteran contends that there is CUE in a March 1992 rating decision that denied entitlement to service connection for bilateral hearing loss. 

In regard to CUE in the March 1992 rating decision, under 38 C.F.R. § 3.105 (a), previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes CUE, the prior decision will be reversed or amended. A decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105 (West 2014).

In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25 (1997); Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Further, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993).

Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993).

Errors that would not have changed the outcome are harmless. By definition, those errors do not give rise to the need for revising the previous decision. The words clear and unmistakable error are self-defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. A determination that there was a clear and unmistakable error must be based on the record and the law that existed at the time of the prior AOJ or Board decision. Russell v. Principi, 3 Vet. App. 310 (1992).

There is a three-pronged test to determine whether clear and unmistakable error is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator, which requires more than a simple disagreement as to how the facts were weighed or evaluated, or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992).

The Veteran essentially argues that the RO erred in failing to grant service connection for bilateral hearing at the time of the March 1992 rating decision as he was found to bilateral hearing loss in 1992 and he reported that a private audiologist opined that his hearing loss was caused by active service. In the March 1992 rating decision, the RO found that the Veteran's diagnosed bilateral hearing loss was not shown to be related to service. The RO reported that service treatment records and a private physician's statement of March 11, 1992 was considered. The Veteran failed to submit a notice of disagreement and therefore, the March 1992 rating became final. 

As a threshold matter, the Board finds the arguments advanced by the Veteran to allege CUE in the March 1992 denial of service connection for bilateral hearing loss have been conveyed with the requisite specificity, and will therefore adjudicate the merits of the claim. Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing the denial of a CUE claim, due to a pleading deficiency, and the denial of a CUE on the merits).

Upon review of the evidence of record and the law in effect in March 1992, the Board finds no clear and unmistakable error in the March 1992 RO decision. 38 C.F.R. § 3.105 (a) (2016).

At the time of the March 1992 rating decision, the evidence considered included the Veteran's service treatment records showing normal audiological results both during service and at service separation. Also reviewed was a March 1992 note from the Veteran's private physician noting that the Veteran had bilateral hearing loss.

At the time of the March 1992 rating decision, the only medical evidence showed that the Veteran had bilateral hearing loss; however, there was no evidence of any medical opinion associating that hearing loss with his active service, and there was no basis for a grant of service connection. In this case, the denial of service connection was supported by the evidence, or lack of evidence, then of record, and the law in effect at that time. Because there was no evidence that bilateral hearing loss was related to service, the claim was denied. The evidence does not show the existence of undebatable error of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. It is not clear and unmistakable that there was bilateral hearing loss should have been service-connected at that time. The findings of the RO were a plausible interpretation of the evidence then of record and a proper application of the extant laws and regulations. Therefore, the Board finds that the decision did not contain CUE.

The Board notes that the Veteran has submitted letters in 2009 dated in April 1992 and May 1992 private audiological opinions. However, the Board notes that these letters were not submitted to the AOJ in 1992 and moreover, are both dated after the issuance of the March 1992 rating decision that denied service connection for bilateral hearing loss. Therefore, the Board finds that these two letters have no relevance to the claim for CUE as they were not submitted by the Veteran-and, indeed, did not exist-during the course of the March 1992 rating decision. 

In light of the above discussion, the Board finds that the RO properly considered all the pertinent evidence before it in March1992. The correct facts, as they were known at the time, were before the RO, and were considered. Thus, no clear and unmistakable error of fact is shown. The findings of fact and discussion of the evidence available at that time are consistent with the conclusion reached. The Veteran's disagreement with the RO's interpretation of the medical evidence of record in March 1992 constitutes a mere disagreement with how the RO evaluated or weighed the facts, and is, therefore, inadequate for a finding of CUE.

With regard to the correct facts being before the RO in March 1992, in the present case, it is clear on its face that the RO in March 1992 considered the Veteran's service treatment records and private treatment records showing a diagnosis of bilateral hearing loss. 

Ultimately, the Veteran has not identified any specific error of law or fact in the March 1992 rating decision denying service connection for bilateral hearing loss that compels a conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for such error. At the time of the March 1992 rating, there was no medical opinion of record, VA or private, linking any post-service diagnosis of bilateral hearing loss to service. The Board cannot find that the RO's decision was an error that was undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. The Board finds that reasonable minds could differ regarding the interpretation of the evidence In order to prove the existence of clear and unmistakable error, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision. Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). In this case, the RO's reliance on the medical evidence of record at the time of the March 1992 rating decision was not in error. Further, there is no error in the RO's conclusion that the Veteran's diagnosed bilateral hearing loss was not related to service. At the time of the March 1992 decision, the RO was not precluded from relying upon its own medical judgment to support its conclusions. Cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board cannot substitute its own medical judgment for that of medical professionals). Therefore, to do so did not constitute error.

To the extent that the RO failed to develop additional evidence by not providing an additional VA examination that might have further addressed the Veteran's current contentions, the Board notes that a failure to fully develop evidence is not considered to be clear and unmistakable error. 38 C.F.R. § 20.1403 (d) (2016). VA's breach of the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete record, rather than an incorrect record. Caffrey v. Brown, 6 Vet. App. 377 (1994).

Inasmuch as the Veteran has failed to establish, without debate, that the correct facts, as they were then known, were not before the RO; that the RO ignored or incorrectly applied the applicable statutory and regulatory provisions existing at the time; or that, but for any such alleged error, the outcome of the decision would have been different, the Board finds that there was no CUE in the March 1992 RO rating decision. Therefore, the Board finds that the criteria for an earlier effective date for the grant of service connection for bilateral hearing loss on the basis of CUE in the March 1992 rating decision that denied service connection for bilateral hearing loss have not been met. 



ORDER

A rating in excess of 10 percent prior to November 6, 2012, for bilateral hearing loss is denied.

A rating of 20 percent from November 6, 2012, to April 29, 2014, for bilateral hearing loss is granted.

As there was no CUE in the March 1992 rating decision that denied entitlement to service connection for bilateral hearing loss, the appeal is denied. 


REMAND

With respect to the Veteran's claim for TDIU, the Board notes the Veteran is in receipt of a 30 percent rating for a coronary artery disability, a 30 percent rating for bilateral hearing loss, and a non-compensable rating for a scar associated with coronary artery disease. His combined rating is 50 percent. Accordingly, he does not meet the percentage criteria for a schedular TDIU rating. 38 C.F.R. § 4.16 (a) (2016). 

Nevertheless, the Board must still consider whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, as he has submitted evidence of a VA Social and Industrial Survey as well as medical records that show he is unable to work due to his service-connected disabilities. 38 C.F.R. § 4.16 (b). Therefore, remand is required for the AOJ to refer the claim to the Director of VA's Compensation Service for consideration of an extraschedular TDIU in the first instance.

Accordingly, the case is REMANDED for the following action:

1. Refer the case to the Director of Compensation Service for consideration of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) (2016).

2. Then, readjudicate the claim on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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