Citation Nr: 1648563	
Decision Date: 12/08/16    Archive Date: 01/06/17

DOCKET NO.  15-09 453	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) with headaches and vertigo.

2.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	Brendan B. Garcia, Attorney


ATTORNEY FOR THE BOARD

E. Redman, Counsel



INTRODUCTION

The Veteran served on active duty from June 1974 to October 1976.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted service connection for TBI with headaches and vertigo and assigned a 10 percent rating, and denied TDIU.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

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


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran underwent a VA examination for his TBI with headaches and vertigo in June 2013.  The report of that examination reflects that the Veteran indicated that he has headaches once a week.  The headaches last a few hours at a time and the Veteran takes Aspirin for his headaches.  It was specifically noted that the headaches are not prostrating.  His vertigo was noted to occur once a week; it lasts for a few seconds.  There is no concurrent hearing loss, tinnitus, ear problems, staggering or nystagmus.

In his March 2015 VA Form 9 the Veteran indicated that he has prostrating headaches at least once a week, which prevent him from being able to work.  He also reported that he staggers occasionally due to his vertigo.

VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Weggenmann v. Brown, 5 Vet. App 281 (1993).  Based on the Veteran's statements reporting additional or worsening symptoms since the June 2013 VA examination, the Board finds that a remand for a new VA examination is warranted in order to determine the current severity of the service-connected TBI with headaches and vertigo.

The Board finds that the TDIU issue is inextricably intertwined with the issue of entitlement to an initial rating in excess of 10 percent for TBI with headaches and vertigo.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined).  Therefore, it must be addressed before the Board can adjudicate the TDIU issue on appeal.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a) (2015).  The Veteran is currently service-connected for right foot osteoarthrosis, rated at 30 percent; right foot metatarsalgia, rated at 10 percent; right foot hallux rigidus/hallux valgus, rated at 10 percent; right thumb osteoarthritis, rated as noncompensable, right foot hammer toes, rated as noncompensable; and TBI with headaches and vertigo, rated at 10 percent.  The combined evaluation for his service-connected disabilities is currently 50 percent.  As such, the Veteran does not currently meet the schedular requirements for a TDIU.  However, it is VA's policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities.  38 C.F.R. § 4.16(b) (2015).

Under section 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), the RO may submit such case to the Director, Compensation Service, for extraschedular consideration.  38 C.F.R. § 4.16(b).  The Board is precluded from granting a total rating under section 4.16(b) in the first instance as the authority to grant such a rating is vested specifically to the Director, Compensation Service.  See id. 

The duty to assist regarding claims for TDIU often requires VA to obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work.  See Friscia v. Brown, 7 Vet. App. 294, 297 (1994).  It is the examiner's responsibility to furnish a full description of the effects of the service-connected disability upon the Veteran's ordinary activities which include employment.  See 38 C.F.R. § 4.10.  This description may include an opinion on such questions as whether a claimant's conditions preclude standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks.  Moore v. Nicholson, 21 Vet. App. 211, 219 (2007) (the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom.  Moore v Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (in a TDIU determination, VA's duty to assist does not require obtaining "a single medical opinion regarding the combined impact of all service-connected disabilities . . . ."); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).

Although the individual VA examination reports contain some information regarding the limitations caused by the Veteran's service-connected disabilities, they do not all directly and sufficiently address the question of his employability.  Therefore, as the current record does not contain an adequate opinion regarding the TDIU claim, the Board finds that the Veteran should be scheduled for a VA examination to assess the combined effect of his service-connected disabilities on his employability.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected TBI with headaches and vertigo.  The claims file must be made available to the examiner.  All appropriate tests and studies should be conducted and clinical findings should be reported in detail.

The examiner should describe the nature and severity of all manifestations of the Veteran's service-connected TBI with headaches and vertigo.

2.  After the above has been accomplished, schedule the Veteran for an interview or examination with a vocational specialist or other appropriate personnel to determine the effects of his service-connected disabilities on obtaining and maintaining gainful employment.  If deemed appropriate, a phone interview will be sufficient. 

The specialist should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity.  The Veteran has previously relayed that he has work experience as a contractor working for various technological companies, and that he completed two years of college.  The June 2015 VA examination report reflects that he last worked in 2008 as a computer software engineer.  In service he was a data processing technician.   

The ultimate purpose of the interview or examination is to ascertain the combined impact of the Veteran's service-connected disabilities on his ability to work.  During the relevant period, service connection was in effect for right foot osteoarthrosis, right foot metatarsalgia, right foot hallux rigidus/hallux valgus, right thumb osteoarthritis, right foot hammer toes, and TBI with headaches and vertigo.  The Veteran's age and any disability other than those above should not be considered.

The report should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. 

3.  If the Veteran continues to not meet the threshold disability percentage requirement for a TDIU under 38 C.F.R. § 4.16(a), the AOJ should consider whether referral to the Director, Compensation Service, for extraschedular consideration is necessary. 

4.  Then, the record should again be reviewed.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



_________________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2015).



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