Citation Nr: 0810380 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-08 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran served on active duty from April 1951 to January 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in San Juan, Puerto Rico, which denied the above claim. In the Appeal To Board Of Veterans' Appeals (VA Form 9) received by the RO in March 2006, the veteran appears to be requesting that his previously denied claim for service connection for a psychiatric disorder, to include as secondary to his service-connected peptic ulcer disease, status post gastrectomy with vagotomy post gastrotomy syndrome and malnutrition, be reopened. The matter is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), are applicable to the veteran's claim here on appeal. This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c) (2007). Having carefully examined the record, the Board finds that a remand of this matter is necessary in order to enable VA to comply with the provisions of the VCAA and other applicable law pertaining to the duty to assist the veteran. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c) (2007). The record reflects at the time of the veteran's claim for TDIU, service connection was in effect for peptic ulcer disease, status post gastrectomy with vagotomy post gastrotomy syndrome and malnutrition, which was rated as 60 percent disabling, and for shell fragment wound of the occipital region, which was rated as noncompensable. The veteran has a combined disability rating of 60 percent. A TDIU rating is assigned where the schedular rating is less than total when the rating agency finds that a disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that there is a single service-connected disability ratable at 60 percent or more or there are two or more service-connected disabilities that have a combined rating of 70 percent and at least one of which is rated at 40 percent or more. See 38 C.F.R. § 4.16 (a) (2007). Id. According to 38 C.F.R. § 4.16(b), it is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. While the Board has reviewed the evidence of record, it is unclear to what extent the veteran's service-connected disabilities affect his employability, in relation to his non-service-connected disorders. As such, the claim is remanded so that an appropriate VA examination may be obtained. The veteran should also be afforded a social and industrial survey to assess his employment history and day- to-day functional impairment caused by the service-connected disorders. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall afford the veteran a VA social and industrial survey to assess his employment history, educational background, and day-to-day functioning. The claims file should be made available to the examiner. The report should include a full account of the veteran's occupational and educational history since service. A written copy of the report should be associated with the veteran's claims file. 2. The RO/AMC shall schedule the veteran for a VA medical examination or examinations, to be conducted by a qualified physician, to ascertain whether one or more of his service-connected disabilities (peptic ulcer disease, status post gastrectomy with vagotomy post gastrotomy syndrome and malnutrition, and shell fragment wound of the occipital region) have made the veteran incapable of sustaining regular substantially gainful employment. In forming the opinion, the examiner should disregard both the age and the non-service-connected disabilities of the veteran. 3. The RO/AMC shall readjudicate the veteran's claim on appeal, with consideration of the provisions of 38 C.F.R. § 4.16(a) and (b). If the determination of the claim remains unfavorable to the veteran, he and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable period of time in which to respond before the case is returned to the Board. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and comply with due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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 Supp. 2007). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006 ).