Citation Nr: 1123327 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 08-35 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from March 1963 to February 1967. This appeal to the Board of Veterans' Appeals (Board) is from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. As support for his claim, the Veteran testified at a hearing at the RO in June 2010, before the undersigned Veterans Law Judge (VLJ) of the Board, also commonly referred to as a Travel Board hearing. During the hearing the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2010). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 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 appellant if further action is required. REMAND A TDIU may be granted upon a showing that the Veteran 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). Consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). The evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability(ies) and that - if there is only one service-connected disability, it is rated as at least 60-percent disabling, or, if more than one disability, at least one disability is rated as at least 40-percent disabling and the Veteran has a combined rating of at least 70 percent. Id. But see, in particular, 38 C.F.R. § 4.16(a). Here, he has one service-connected disability that is at least 60-percent disabling. That is, the Veteran's service-connected PTSD has been rated as 70-percent disabling, which clearly satisfies the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU. Since the schedular criteria for a TDIU are met, there is no need for the RO to alternatively consider whether an extra-schedular TDIU is warranted under § 4.16(b). See also Thun v. Peake, 22 Vet. App. 111 (2008). However, the Board emphasizes that this appeal has been ongoing for several years. As such, the Board finds that reexamination is needed to determine the current severity of the Veteran's service-connected PTSD, insofar as assessing the impact on his employability. His last VA PTSD examination was in October 2007, so approximately three and a half years ago. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the CAVC determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Regarding potentially outstanding VA treatment records, there are currently VA treatment records on file from the Reno VA Medical Center (VAMC) in Reno, Nevada, dated until December 2007. It is unclear whether the RO attempted to obtain any more recent VA treatment records from this facility and others. In that regard, the Veteran testified that he has continued to receive VA outpatient treatment for his service-connected PTSD from another VA facility, the VA Caldwell Outpatient Clinic (OPC), part of the Boise, Idaho VAMC. See June 2010 personal hearing transcript, at 10-11. So, at minimum, VA needs to obtain all of his recent VA treatment records from the Reno and Boise VAMCs. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive, if not actual, notice of this evidence because it is generated within VA's healthcare system). See also 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2), (c)(3). On remand, the RO must attempt to obtain these additional records and, if they do not exist, must make an express declaration confirming that further attempts to obtain them would be futile. The Veteran should also be apprised of the latter situation, if it arises. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Ask the Veteran to assist in the search for any additional VA treatment records by specifying dates, locations, and providers of treatments at VA facilities. After allowing an appropriate time for response, contact the Reno VA Medical Center (VAMC) in Reno, Nevada and the Boise, Idaho VAMC to obtain all of his treatment records, especially any outstanding records not already associated with the claims file dated after December 2007. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). 2. After completing the requested development in paragraph #1, schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected PTSD on his employability. The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on his TDIU claim. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Based on examination findings, history reported by the Veteran, and other evidence contained in the claims file, an appropriate VA examiner should discuss all impairment/symptoms caused by the service-connected PTSD. The examiner must offer an opinion as to whether this disability precludes the Veteran from obtaining and maintaining substantially gainful employment given his level of education and any prior work experience or training, etc. The examiner must discuss the rationale for any opinions and conclusions expressed, whether favorable or unfavorable, based on the results of the examination and information obtained from review of the record. 3. Then readjudicate the claim in light of any additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file 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. 2010). _________________________________________________ C. CRAWFORD 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).