Citation Nr: 1000092 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-03 423A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran had active service from July 1945 to January 1947 and from November 1947 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefit sought on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he is unemployable due to his service-connected disabilities. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) also provides that disabilities resulting from common etiology or a single accident will be considered as one disability. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The test of individual unemployability is whether the veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Service connection is currently in effect for right leg varicose veins, rated 40 percent disabling; pes planus, rated 30 percent disabling; bilateral hearing loss, rated 20 disabling; tinnitus, rated 10 percent disabling; and an appendectomy scar, rated noncompensable (0 percent). The service-connected disabilities result in a combined rating of 70 percent. See 38 C.F.R. § 4.25. The schedular criteria of 38 C.F.R. § 4.16(a) are therefore met, as the Veteran has a single disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. The remaining question is whether the Veteran's service-connected disabilities, alone, prevent him from securing or maintaining a substantially gainful occupation consistent with his education and employment background. 38 C.F.R. § 4.16(a). The claims file contains reports from multiple VA examinations provided during the pendency of this appeal. Some of these reports address the question of unemployability. There is no examination report, however, where the examiner considered the effect of all the service- connected disabilities upon the Veteran's employability. Therefore, the Board must remand the appeal for a VA examination in which an examiner addresses the effect of all the service-connected disabilities and makes a determination whether the service-connected disabilities preclude him from engaging in substantially gainful employment. The Veteran was issued a notification letter pursuant the Veterans Claims Assistance Act of 2000 (VCAA) during the pendency of this appeal that addressed entitlement to TDIU in October 2005. Subsequent to this letter, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Although Dingess addressed notice in a claim for service connection, the Veteran should be issued notice upon remand regarding how effective dates are established. Lastly, copies of all outstanding records of treatment, VA and non-VA, received by the Veteran for the service-connected disabilities should be obtained and made part of the claims file. See 38 C.F.R. § 3.159(c)(1)(2). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Review the record and ensure compliance with all notice and assistance requirements by issuing the Veteran an additional notification letter that includes an explanation as to the information or evidence needed to establish an effective dates for the benefit sought as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Copies of any outstanding records of treatment, VA and non-VA, received by the Veteran for his service-connected disabilities should be obtained and made part of the claims file. 3. Schedule the Veteran for a VA examination for the purpose of determining the impact that his service- connected right leg varicose veins, pes planus, bilateral hearing loss, tinnitus, and appendectomy scar have on his ability to maintain substantially gainful employment. The claims file must be made available in conjunction with the examination. Following the history and clinical evaluation, and any tests that are deemed necessary, the examiner is to render an opinion on the following: Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's service-connected right leg varicose veins, pes planus, bilateral hearing loss, tinnitus, and appendectomy scar render him incapable of maintaining substantially (more than marginal) employment consistent with his education and employment background? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. More likely and as likely support the claim of unemployability; less likely weighs against the claim. A complete rationale for all opinions must be provided. 4. Thereafter, the claim on appeal must be readjudicated on the basis of all of the evidence of record and all governing legal authority. If the benefit sought on appeal is not granted, the Veteran and his representative must be provided with a supplemental statement of the case that addresses all of the evidence received since the statement of the case was issued. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The Veteran need take no action until otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional evidentiary development and protect the Veteran's due process rights. No inference should be drawn as to the outcome of this matter by the actions herein requested. The Veteran's appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2009).