Citation Nr: 1122196 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-25 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 Hartford Regional Office (RO) in Newington, Connecticut rating decision that, in relevant part, denied entitlement to TDIU. The Veteran had a hearing before the undersigned in November 2010. A copy of the hearing transcript has been associated with the claims file. 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 alleges entitlement to a TDIU. He essentially contends that the impairment caused by his service-connected disabilities, specifically posttraumatic stress disorder (PTSD) and peripheral vascular disease with claudication, status post right popliteal bypass, renders him unable to secure or maintain substantially gainful employment. Having reviewed the claims file, the Board finds that additional development is necessary prior to the adjudication of this claim. The law provides that 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 disability 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. § 4.16(a) (2010). In this case, the Veteran's service-connected PTSD currently is rated at 50 percent and his peripheral vascular disease with claudication, status post right popliteal bypass, is rated at 40 percent, with a combined rating of 70 percent. As such, the critical question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In that regard, the Board noted that during a February 2009 VA psychiatric examination the Veteran reported working 20 to 30 hours per week in his upholstery business and had previous experience working for the VFW as a bartender and bar manager. The examiner concluded that while the Veteran had spent the majority of his working life self-employed, he had been able to maintain an adequate level of occupational functioning. In addition, during a March 2009 VA vascular examination the Veteran reported that he currently was not working due to a February 2009 left rotator cuff reconstruction. The above notwithstanding, the record includes an October 2009 letter from VA staff physician A. K. that indicated the Veteran had "several medical problems that render him unemployable." An April 2010 VA treatment record indicated that the Veteran's PTSD symptoms had been improving over time. In addition, during his November 2010 Board hearing the Veteran stated that on average he was working only 8 to 10 hours every 2 weeks, that work that used to take him a week now took him about 6 months, that he had lost jobs because he was taking too long to complete the project or because he could not get along with the customer, and that in the previous year he had earned between $3,000 and $4,000 in his upholstery business. Thus, the evidence suggests that the Veteran's conditions may have worsened since his last VA examinations in February and March 2009. In that regard, the United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, the claim must be remanded in order to afford the Veteran another VA examination to determine the current severity of his PTSD and peripheral vascular disease with claudication, status post right popliteal bypass, and the impact, if any, on his employability. In addition, the RO/AMC should take the opportunity to obtain VA treatment records from April 2010 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from all applicable VA medical facilities for treatment received from April 2010 to the present. 2. After the above has been completed, schedule the Veteran for examination. The examiner must be provided with the entire claims file, including a copy of this remand and a list of the Veteran's service-connected disabilities. The examination report should reflect that a review of the claims file was completed. The examiner should evaluate all of the Veteran's service-connected disabilities. After completing an examination of the Veteran, reviewing the record, and reviewing any specialty examinations obtained, the VA examiner should discuss what functional limitations the Veteran experiences as a result of the cumulative effect of his service-connected disabilities and what impact, if any, these have on his occupational functioning. The examiner should describe if and how the Veteran's service-connected disabilities might impact his ability to perform sedentary, light-duty, and labor-intensive employment. Consideration should not be given to the Veteran's age, and any discussion and/or opinion(s) should be limited to the impact of his Veteran's service-connected disabilities on the ability to obtain or maintain employment. In that regard, the Board notes that the Veteran also has significant problems with his nonservice-connected bilateral shoulders and hands, including residuals of a February 2009 left rotator cuff reconstruction, as well as left bicep tendonitis. A rationale which considers the clinical and lay evidence of record should accompany any discussion(s)/opinion(s) provided in the report. The examiner specifically is requested to consider, and discuss as necessary, the October 2009 letter from VA physician A. K. that indicated the Veteran had several medical problems that rendered him unemployable, as well as the February 2009 VA psychiatric examination and March 2009 VA vascular examination. 3. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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. 2010). _________________________________________________ MICHAEL LANE 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).