Citation Nr: 1648514	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  10-04 386A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to September 24, 2008.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jaime M. Porter, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1967 to February 1970.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  Jurisdiction is now with the RO in Los Angeles, California.    
 
In January 2015, this matter was remanded for readjudication in consideration of the Board's grant of service connection for hepatitis C and an increased rating prior to June 4, 2012, for diabetes mellitus, type II, with diabetic macular edema of the left eye, plantar callus formation of the bilateral heels, and hypertension.  In May 2015, the RO granted entitlement to a TDIU from September 24, 2008, pursuant to 38 C.F.R. § 4.16(a), and deferred its decision regarding entitlement prior to September 24, 2008.  In an August 2016 supplemental statement of the case, the RO denied entitlement to a TDIU prior to September 24, 2008, and this issue has returned to the Board.  

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 appellant if further action is required.


REMAND

The Veteran contends that he is unemployed due to his service-connected disabilities.  For the period from March 26, 2006 through September 23, 2008, the Veteran was service-connected for diabetes mellitus, type II, with diabetic macular edema of the left eye, plantar callus formation of the bilateral heels, and hypertension, rated as 40 percent disabling.  From March 26, 2007 through September 23, 2008, the Veteran was additionally service-connected for hepatitis C, rated as 40 percent disabling.  Thus, the Veteran has combined ratings of 40 percent from March 26, 2006, to March 25, 2007, and of 60 percent from March 26, 2007, to September 23, 2008.  

The Veteran's combined ratings prior to September 24, 2008, do not meet the percentage requirements for entitlement to a TDIU under 38 C.F.R. § 4.16(a).  However, the Board must also consider entitlement to a TDIU on an extra-schedular basis.  38 C.F.R. § 4.16(b) (2015).  A TDIU can be awarded on an extra-schedular basis under 38 C.F.R. § 4.16(b) if it is determined that the Veteran is unemployable by reason of service-connected disability, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  If it is determined that the Veteran is unemployable due to service-connected disability, the Board cannot consider extra-schedular entitlement to a TDIU in the first instance.  Rather, the claim must be remanded so that it can be referred to VA's Director, Compensation Service, for initial consideration.  Bowling v. Principi, 15 Vet. App. 1 (2001).

In June 2010, the RO obtained a VA medical opinion with regard to the impact of the Veteran's service-connected disabilities on his employability.  The clinician opined that the Veteran's service-connected and non-service-connected medical conditions had a moderate adverse impact on his functional capacity in the workplace, but did not render him unemployable.  However, the June 2010 VA opinion does not reflect consideration of the Veteran's education and occupational experience.  The Board finds the opinion inadequate, as consideration of the Veteran's level of education, any special training, and previous work experience may be part of a TDIU determination.  See 38 C.F.R. § 4.16 (2015).  The VA opinion also does not discuss the March 2010 report of Dr. C. C., an independent medical examiner who opined that the Veteran was permanently unable to gain or maintain substantial employment due to his service-connected disabilities alone.  In addition, neither the June 2010 VA opinion nor the report of Dr. C. C. addresses the Veteran's functional impairment prior to September 24, 2008.  For these reasons, another VA opinion is necessary to specifically address the impact of the Veteran's service-connected disabilities on his employability prior to September 24, 2008.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination or obtain an opinion, such examination or opinion must be adequate).  

The Board also notes the Veteran's reports of receiving Social Security disability benefits since 1999 due to his diabetes mellitus and hepatitis C.  The record reflects that the RO requested the Veteran's records from the Social Security Administration (SSA) in May 2015.  In response, the SSA indicated that the Veteran's medical records had been destroyed.  The Veteran was notified of such in an August 2016 supplemental statement of the case.  However, the RO did not make a formal finding of unavailability as to these records.  Since this claim must be remanded for other reasons, the Board finds that the RO should make a formal finding that a request for such records would be futile, if such is the continued determination, and notify the Veteran of such, or make another attempt to obtain these records.  

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.  The RO should make a formal finding that further requests for the Veteran's Social Security Administration medical records would be futile, if such is the continued determination, and notify the Veteran of such, or make another attempt to obtain these records.  In accordance with 38 C.F.R. § 3.159(e), the formal finding must include the identity of the records VA was unable to obtain, detail regarding all actions undertaken in the records search, a description of any further action VA will take regarding the claim, and notice that the Veteran is ultimately responsible for providing the evidence.  

2.  Thereafter, obtain a supplemental VA opinion from a vocational expert or appropriate medical professional to determine the functional impact, prior to September 24, 2008, of the Veteran's service-connected disabilities, considered either alone or in combination, on his ability to maintain employment consistent with his education and occupational experience.  From March 26, 2006 through September 23, 2008, the Veteran was service connected for diabetes mellitus type II with diabetic macular edema, left eye, and plantar callus formation, bilateral heels, and hypertension; and from March 26, 2007 through September 23, 2008, the Veteran was additionally service connected for hepatitis C in addition to diabetes mellitus type II with diabetic macular edema, left eye, and plantar callus formation, bilateral heels, and hypertension.  

The claims file, including this Remand, must be provided to and reviewed by the examiner, and a notation that the claims file was reviewed must be included in the opinion.  The examiner must elicit from the record the Veteran's full work and educational history.  Based on a review of the evidence, the examiner must provide an opinion as to the following:  

Is it at least as likely as not that the Veteran's service-connected disabilities prior to September 24, 2008, considered either alone or in combination, precluded him from securing and following substantially gainful employment consistent with his education and occupational experience, without regard to his age or any nonservice-connected disabilities?  

The opinion provided must include an explanation of the bases for the opinion.  The clinician must reconcile his/her opinion with the March 2010 report of Dr. C. C., an independent medical examiner who opined that the Veteran was permanently unable to gain or maintain substantial employment due to service-connected disabilities.  If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion could not be provided without resort to speculation.  

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO should readjudicate the Veteran's TDIU claim for the period prior to September 24, 2008, to include consideration of whether referral of the Veteran's claim to the Director, Compensation Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b) (2015), is warranted.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given 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 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
U. R. POWELL
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) (2015).



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