Citation Nr: 1124626 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 10-16 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The Veteran was afforded a Travel Board hearing in December 2010, and the transcript is of record. The Board notes that a March 2010 Statement of the Case denied an increased rating for posttraumatic stress disorder (PTSD), and denied entitlement to a TDIU. The Veteran, however, on his subsequent Substantive Appeal received in April 2010, limited his appeal only to the TDIU claim. The claim for a higher rating for PTSD is not before the Board. At the December 2010 hearing, the Veteran's representative argued that the Veteran's service- connected PTSD should be rated as more than 70 percent disabling; however, such issue is not before the Board at this time, and is referred to the AOJ for appropriate action. 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 Board notes that the Veteran has specifically claimed TDIU as due to his service-connected PTSD. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 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). In the present case, the Board notes the Veteran's PTSD was service connected beginning May 15, 2007. Effective April 30, 2008, the Veteran's rating for his service-connected PTSD disability was increased to 70 percent, meeting the schedular requirements of 38 C.F.R. § 4.16(a). In August 2007, a VA examiner indicated that the Veteran had been unable to work since an initial stroke in 2005. The examiner relayed that the Veteran sold his electrical business, but continued to work for the new owner until interpersonal friction arose. The examiner indicated that the Veteran completed high school and one year of college. In June 2008, a VA examiner relayed that the Veteran worked as an independent contractor, electrician, for 35 years. The Veteran reported that towards the end of his career he had difficulty getting along with others, which resulted in frequent arguments, including an occasion when he threw a chair at an employee. The Veteran indicated that he had not worked since 2007. The Veteran and his wife explained that the Veteran, who was self-employed for approximately 35 years, sold his electrical business to Advanced Electrical Contractors, and then worked for them. The Veteran elaborated on his constant conflict with his boss, customers and other employees, including the above-mentioned chair-throwing conflict. It is contended that the constant conflict and irritability with others resulted in his quitting, and in a reputation such that he has been unable to obtain other employment. The Veteran, who was last employed in 2007 indicated that he quit because of his inability to maintain workable relationships at work, which he attributed to his service-connected PTSD. Subsequent to leaving his position with Advanced Electrical Contractors, the Veteran had a stroke; however, he and his wife have emphasized that his service-connected PTSD, and not his stroke, is the reason that he is unemployable. They indicated that during the period that he left Advanced Electrical Contractors, and before he suffered the stroke, he was unable to obtain other employment. No examiner has currently commented on the Veteran's ability to follow or secure substantially gainful employment due to his service-connected PTSD. A VA examination is necessary to determine the effect of the Veteran's service-connected PTSD on his employability. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA's duty to assist includes providing a medical examination and/or obtaining a medical opinion when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Board notes that Social Security Administration (SSA) records were submitted to VA on compact discs (CDs); the RO did not print copies of the records. On remand, the SSA records should be printed and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Print the SSA records provided on the CDs, located in the white envelope in volume 2 of the claims file, and associate the records with the claims folder. 2. Then, schedule the Veteran for a VA examination. The claims folder should be reviewed by the examiner. The examiner should state whether the Veteran's service-connected PTSD made him unable to secure or follow substantially gainful employment, and if so, specify the date he became unable to secure or follow substantially gainful employment since the period beginning May 15, 2007. The opinion should take into account the Veteran's employment history, and his educational and vocational attainment. The Board recognizes that a certain degree of conjecture is required to arrive at any medical opinion; the examiner should state whether it is at least as likely as not that the Veteran is unable to secure or follow substantial gainful employment as a result of his service-connected PTSD, even if a certain degree of conjecture based on medical principles and expertise is required to do so. 3. The case should then be reviewed on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). (CONTINUED ON THE NEXT PAGE) _________________________________________________ M. MAC 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) (2010).