Citation Nr: 1003333 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 08-14 836 ) 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 due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The Veteran had active military service from September 1965 to August 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Acting Veterans Law Judge in February 2009. A transcript of the hearing is of record. 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 Veteran seeks entitlement to a TDIU. He is currently service connected for diabetes mellitus (rated as 20 percent disabling), peripheral neuropathy of the right lower extremity (rated as 10 percent disabling), peripheral neuropathy of the left lower extremity (rated as 10 percent disabling), peripheral neuropathy of the right upper extremity (rated as 10 percent disabling), peripheral neuropathy of the left upper extremity (rated as 10 percent disabling), cataracts (rated a noncompensable), peripheral vascular disease of the left lower extremity (rated as noncompensable), and peripheral vascular disease of the right lower extremity (rated as noncompensable). His combined evaluation for compensation is 50 percent. Pursuant to VA's duty to assist, VA must assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009). Here, because the Veteran is unemployed and a VA examiner opined that he would be unable to perform jobs that require prolonged standing and walking, the Board finds that VA must obtain a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities render him unable to secure or follow any substantially gainful occupation. Thus, the Board has no discretion and must remand this matter to afford the Veteran a VA examination, the report of which must address the above inquiry. See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In addition, at his February 2009 Board video conference hearing, the Veteran indicated his desire to seek entitlement to service connection for posttraumatic stress disorder (PTSD). This issue has not been adjudicated by the agency of original jurisdiction. As the Veteran's claim of entitlement to a TDIU is intertwined with his claim for entitlement to service connection for PTSD, the Board must remand the PTSD claim for the RO to adjudicate it prior to readjudicating the claim for TDIU. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all of the Veteran's treatment records from the Memphis VA Medical Center in Memphis, Tennessee, from March 2007 to the present. 2. The RO should then adjudicate the Veteran's claim for service connection for PTSD. The RO should review the claims file, including the Veteran's statements of stressors, and any additional information submitted by other individuals or otherwise obtained pursuant to this remand, and prepare a summary of all claimed stressors. This summary and all associated documents should be sent to the U.S. Army, Joint Services Records Research Center (JSRRC) to obtain a unit history of the 720th Military Police Battalion in an attempt to corroborate the Veteran's claimed stressor(s), specifically including being ambushed by and exchanging fire with enemy combatants while escorting a supply convoy. 3. The Veteran should then be afforded a VA psychiatric examination to determine the nature and etiology of any psychiatric disability found to be present, to specifically include PTSD. The claims folder must be made available to and reviewed by the examiner. All indicated tests should be performed and the examiner must rule in or exclude a diagnosis of PTSD. If the examiner diagnoses the Veteran as having PTSD, the examiner must state whether the Veteran has PTSD due to an independently verifiable in-service stressor. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made and should render an opinion regarding whether any diagnosed psychiatric disorder is at least as likely as not due to or related to the Veteran's active service. 4. After the claim for entitlement to service connection for PTSD is adjudicated, the RO should then schedule the Veteran for an appropriate VA examination. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. After completion of the foregoing, the RO must consider whether service connection for psychiatric disability, to specifically include PTSD, is warranted. Then the RO must readjudicate the Veteran's TDIU claim. Adjudicate the veteran's back disability claim. If the schedular requirements set forth in 38 C.F.R. § 4.16(a) are not met, the RO must refer his TDIU claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extra- schedular evaluation. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 Supp. 2009). _________________________________________________ STEVEN D. REISS 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) (2009).