Citation Nr: 1120970 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 10-39 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision that denied the benefits sought on appeal. The appeal are REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Although the Board regrets the additional delay, further development is needed prior to the disposition of the Veteran's TDIU claim. The Veteran contends that his service-connected PTSD and related psychiatric symptoms effectively preclude him from working and that a TDIU is therefore warranted. Specifically, he asserts that he has been terminated from multiple jobs due to his psychiatric problems, which are manifested by an inability to take direction from supervisors and a proclivity toward violent altercations with coworkers. The record shows that the Veteran last worked fulltime as a roofer in August 2006. At the outset, the Board observes that total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2010). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Total disability ratings for compensation 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, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 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) (2010). It is the established policy of VA 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 38 C.F.R. § 4.16(a) (2010). 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. 38 C.F.R. § 4.16(b) (2010). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a); 4.19 (2010). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). In this case, the Veteran's sole service connected disability is PTSD, which is rated 70 percent disabling. Thus, the percentage criteria of 38 C.F.R. § 4.16(a) are met. The remaining question therefore is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service- connected disabilities, and the Board believes that a VA examination will be helpful in resolving that question. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). The Board acknowledges that the Veteran was previously afforded a July 2008 VA examination that addressed the impact of his PTSD on his employability. At that time, the Veteran reported that, since losing his fulltime job as a roofer, he had been forced to make ends meet by "taking care of a house and doing odd jobs and driving chores" for a family. The Veteran indicated that, while he was not paid for his services, "his living expenses were taken care of." In the course of his VA examination, the Veteran also acknowledged a long-standing pattern of illicit drug use and a complicated legal history, which included multiple arrests for assault, illegal gambling, and cocaine possession. He admitted that he continued to use drugs to cope with his psychiatric problems but indicated was currently seeking treatment for those problems at a local VA Vet Center. Based on the results of the clinical evaluation, the VA examiner diagnosed the Veteran with PTSD, depressive disorder not otherwise specified, and cocaine abuse. In addition, the VA examiner assigned the Veteran a Global Assessment of Functioning score of 49, indicating significant occupational and social impairment. Nevertheless, the examiner indicated that the Veteran was not totally occupationally and socially impaired on account of his PTSD. The examiner then opined that the Veteran's depressive symptoms were intertwined with his PTSD and consequently it was impossible to determine what effect those symptoms alone had on his impairment of functioning. Significantly, the VA examiner indicated that he had reviewed the Veteran's claims folder, but expressly acknowledged that his Vet Center treatment reports were not of record. Following the VA examination, the Veteran submitted a July 2010 statement from his former employer, who is also his cousin. In that statement, the cousin indicated that he had reluctantly terminated the Veteran's employment due, in part, to his violent disposition and inability to work effectively with other members of his construction crew. Thereafter, the Veteran submitted a September 2010 written from his long-term neighbor, who attested to the Veteran's unpredictable mood swings and general inability to get along with others. The Board observes that the above lay evidence, which directly supports the Veteran's TDIU claim, was not taken into account at the time of his July 2008 VA psychiatric examination. Moreover, while the July 2008 VA examiner addressed the impact of the Veteran's PTSD on his social and occupational functioning, no definitive finding was made regarding his depression and related psychiatric symptoms. On the contrary, the examiner noted that he could not determine what effect those symptoms had on the Veteran's ability to function. The Board finds the examiner's opinion in this respect to be inherently speculative in nature and, thus, of limited probative value. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Swann v. Brown, 5 Vet. App. 229 (1993). Although the Veteran has been granted service connection for PTSD, his disability award effectively encompasses all underlying psychiatric symptoms. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Hence, all of those psychiatric symptoms must be taken into account in determining whether a TDIU rating is warranted. Furthermore, while mindful of the July 2008 VA examiner's finding that the Veteran is not totally socially and occupationally impaired due to his PTSD, the Board nevertheless considers it significant that the examiner did not specifically comment on whether the Veteran's service-connected disability prevents him from obtaining or maintaining a substantially gainful occupation. 38 C.F.R. § 3.340 (2010). Substantially gainful employment is work that is more than marginal, which permits an individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Thus, it is conceivable that the Veteran's service-connected disability could preclude substantially gainful employment even if it were not productive of total social and occupational impairment. In light of the foregoing, the Board finds that an additional VA examination and opinion is necessary to ascertain the impact of the Veteran's service-connected psychiatric disorder on his ability to obtain and maintain substantially gainful employment. Friscia v. Brown, 7 Vet. App. 294 (1995). That VA examination and opinion should include a review of all pertinent evidence in the Veteran's claims folder. 38 C.F.R. § 4.1 (2010). Finally, the Board observes that, while the Veteran has alerted VA that he receives regular mental health treatment through his local Vet Center, no Vet Center records have yet been obtained. Accordingly, efforts to obtain such records should be made on remand. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims folder all mental health treatment records from the Fort Lauderdale, Florida, Vet Center. 2. After the above development is completed, schedule the Veteran for a VA examination to ascertain the impact of his service-connected psychiatric problems on his unemployability. The claims folder should be reviewed by the examiner, and the examination report should note that review. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to all pertinent evidence of record, including the Veteran's mental health treatment records, the report of his July 2008 VA psychiatric examination, and the lay evidence he has submitted to show that his overall mental health symptoms adversely affect his ability to work and perform daily living activities. The examiner should describe the overall impact of the Veteran's psychiatric problems on his occupational and social functioning. Thereafter, the VA examiner should state whether the Veteran's service-connected PTSD and psychiatric symptoms, without consideration of any nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. 3. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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 or United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ Harvey P. Roberts 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) (2010).