Citation Nr: 1019502 Decision Date: 05/26/10 Archive Date: 06/09/10 DOCKET NO. 08-36 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and his wife ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1959 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. In July 2009, the Veteran provided testimony at a Board personal hearing (Travel Board hearing) before the undersigned Acting Veterans Law Judge in Manila, Republic of the Philippines. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran has filed a claim for TDIU (also referred to as individual unemployability or IU). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a) (2009). Provided that if there is only one such disability, it shall be ratable at 60 percent or more, and, 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. 38 C.F.R. § 4.16(a) (2009). Entitlement to a total disability rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2009). Service connection is in effect for hypertensive cardiovascular disease (30 percent from September 16, 2004, and 60 percent from January 26, 2006); diabetes mellitus with cataract and hyperlipidemia (20 percent from September 16, 2004); hypertension with hypertensive retinopathy (10 percent from September 16, 2004); peripheral neuropathy of the right upper extremity (10 percent from January 26, 2006); peripheral neuropathy of the left upper extremity (10 percent from January 26, 2006); peripheral neuropathy of the right lower extremity (10 percent from January 26, 2006); peripheral neuropathy of the left lower extremity (10 percent from January 26, 2006); and erectile dysfunction (0 percent from September 16, 2004). The combined schedular disability rating of all service-connected disabilities is 80 percent from January 26, 2006, which meets the schedular criteria under 38 C.F.R. § 4.16(a) for consideration for TDIU. While the Veteran has multiple service-connected disabilities, the evidence of record is not adequate to decide the question of whether service-connected disabilities alone render the Veteran unable to obtain or maintain substantially gainful employment. A VA examination would be appropriate to determine whether the Veteran is unemployable by reason of his service-connected disabilities. Accordingly, the issue of entitlement to TDIU (IU) is REMANDED for the following actions: 1. Schedule an appropriate VA examination to determine the impact of the Veteran's disabilities upon his ability employability. After reviewing the relevant documents in the claims file and examining the Veteran, the examiner should respond to the following: An assessment of the Veteran's day-to-day functioning should be made. The VA examiner should comment on the degree of social and industrial impairment that the Veteran experiences as a result of his service-connected disabilities. Without regard to the Veteran's age or the impact of any non-service-connected disabilities, is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's service- connected disabilities render him unable to secure or retain substantially gainful employment? The examiner should offer a rationale for any opinion with reference to pertinent evidence. 2. After completion of the above, the RO/AMC should then review the expanded record and readjudicate the issue of entitlement to TDIU (IU). The RO should issue a supplemental statement of the case, and give the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2009). 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). _________________________________________________ J. Parker 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).