Citation Nr: 0814851 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 03-24 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from October 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. In January 2005, this matter and the matter of entitlement to a rating in excess of 50 percent for depressive neurosis were previously before the Board and both issues were remanded for further development. In September 2006, the Board denied entitlement to an evaluation in excess of 50 percent for depressive neurosis prior to August 15, 2002, granted an evaluation of 70 percent for depressive neurosis from August 15, 2002, and remanded the issue of entitlement to a TDIU for readjudication because the veteran's combined disability evaluation was altered. The issue of entitlement to a TDIU has now returned to the Board for further appellate consideration. In July 2004, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. A motion, dated July 25, 2006, to advance this case on the Board's docket was received by the Board. This motion was granted by the Board on August 15, 2006 due to the veteran's advanced age. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). A September 29, 2006 rating decision implemented the Board's September 2006 decision which awarded a 70 percent rating for depressive neurosis effective from August 15, 2002. A statement of record signed by the veteran, dated in February 2007, requested an increased 100 percent rating for the service-connected depressive neurosis "retroactive from the 2002." The September 2006 Board decision is final as to the veteran's 70 percent disability evaluation for depressive neurosis from August 15, 2002. There has been no allegation of clear and unmistakable error in that decision. However, to the extent that the veteran's February 2007 statement may be construed as a new claim for an increased rating for his service-connected depressive neurosis, it is referred to the RO for appropriate action. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The veteran is claiming entitlement to TDIU. Since this matter was last at the Board in September 2006, the veteran submitted a VA Form 28-1900, Application for Vocational Rehabilitation, dated in February 2007. The record does not indicate if the veteran is a participant in a vocational rehabilitation program. Further, if he is a participant, the veteran's claims file does not contain the pertinent vocational rehabilitation records. The Board finds that vocational rehabilitation records are relevant to the veteran's TDIU claim and would be useful in the Board's appellate review. As such, the Board finds that a remand is necessary to obtain any vocational rehabilitation records and associate them with the claims folder. Upon further review of the claims folder, the Board finds that additional development should be undertaken with respect to the veteran's TDIU claim, in order to satisfy VA's duty to assist obligations. At the time of the last VA examinations in March 2005, the veteran had a 50 percent evaluation for depressive neurosis and a noncompensable rating for McBurney's scar. Since those VA examinations, the September 2006 Board decision, in part, increased the disability evaluation for the veteran's service-connected depressive neurosis to 70 percent, effective August 15, 2002. Additionally, since the March 2005 VA examinations, a letter by J.M.S., M.D., dated in October 2007, was added to the claims file. In the letter, Dr. J.S. indicated that the veteran has several chronic medical problems (which limit his stamina) and that these, combined with his advancing age, preclude him from gainful employment. The Board notes that the opinion by Dr. J.S. indicates that the veteran may not be able to follow a gainful employment, but it does not indicate that such is due solely to service-connected disabilities. Further, Dr. J.S. did not provide a rationale for the opinion given. Based on the October 2007 letter from Dr. J.S. and the fact that the veteran's last VA examination was over three years ago, the Board finds that a clinical opinion as to whether the veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities would be useful in determining whether a grant of TDIU may be awarded. Therefore, in order to satisfy VA's duty to assist, such an opinion should be obtained. See 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED for the following action: 1. Associate with the veteran's claims file all documentation/records prepared pursuant to consideration of the veteran's application for VA vocational rehabilitation dated in February 2007. If the veteran is not a participant in a VA vocational rehabilitation program or if these records are not available, this should be documented in the claims file. 2. After associating any VA vocational rehabilitation records with the claims file, schedule the veteran for a VA general medical examination to determine whether he is unable to secure and follow substantially gainful employment due to his service-connected disabilities considered as a whole. Specifically, the examiner is requested to provide an opinion, based on a review of the veteran's clinical history as contained in the claims folder, as to whether it is at least as likely as not (50 percent or greater) that the veteran's service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation. The examiner should give consideration to the veteran's level of education, special training, and previous work experience, but should not consider his age or the impairment caused by nonservice-connected disabilities. The claims folder should be made available to, and reviewed by, the examiner in connection with the above examination. The examiner must indicate in the examination report that the claims file was reviewed. All necessary tests and studies should be accomplished and any complaints and clinical manifestations should be reported in detail. The examiner must explain the rationale for all opinions given. 3. Thereafter, readjudicate the issue of entitlement to TDIU on appeal. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. 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). _________________________________________________ U. R. POWELL 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) (2007).