Citation Nr: 1124822 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 09-04 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Sherrard, Associate Counsel INTRODUCTION The Veteran had active service from March 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). 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 Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). As much as the Board would prefer to resolve the appeal at this time, preliminary review reveals that the information in the record before us is inadequate to make an informed determination, and discloses a need for further development prior to final appellate review. In this regard, the Board is of the opinion that VA's duty to assist includes affording the Veteran a VA examination under the facts and circumstances of this case. VA will provide a medical examination which includes a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. An examination is deemed "necessary" if the evidence of record (lay or medical) includes competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. §5103A(d)(2). In this case, the Veteran contends that he is unable to secure gainful employment due to his service-connected disabilities. Specifically, in his April 2007 claim form and a May 2009 statement, he asserted that he is unemployable due to his service-connected status post radical prostatectomy and mental disorders, and has been unemployable since December 2006. More specifically, in a February 2011 VA Form 646, the Veteran's representative stated that his service-connected posttraumatic stress disorder (PTSD) makes it impossible to continue in his field of real estate sales, because he cannot maintain relationships with other professionals, peers, and the public. Currently, the Veteran has been awarded the following service-connected disability evaluations: 70 percent effective from February 21, 2006, for PTSD; 40 percent effective from June 1, 2006, for residuals, status post radical prostatectomy; 20 percent effective from January 24, 1969, for residuals of a gunshot wound, Muscle Group II; and 0 percent effective from February 21, 2006, for erectile dysfunction. These awards have resulted in a combined service-connected disability rating of 90 percent, effective from June 1, 2006. The Veteran was afforded VA examinations in April 2007 and June 2007 with regard to increased-rating claims for residuals of a prostatectomy and PTSD. He reported that he had been self-employed in real estate sales for 23 years, but had given up his business six months prior because he could not concentrate due to depression. The examiner also noted that the frequency, urgency, and stress incontinence - residuals of the prostatectomy - significantly interfered with his daily activities. He had to stay close to rest rooms and plan his activities accordingly. Consequently, he preferred to stay home, and traveling and social interaction were limited. The psychiatrist who conducted the mental health VA examination also noted that the Veteran could not deal with the stress of work, and that his urinary incontinence became inconvenient to his work as a real estate salesman. The examiner assigned a GAF(Global Asessment of Functioning) score of 55. Thus, there is indication that the Veteran's service-connected disabilities would affect his ability to continue his profession as a real estate salesman, but no opinions have been obtained as to how his service-connected PTSD and residuals of a prostatectomy affect his ability to obtain and maintain employment, or how all of his service-connected disabilities in combination affect his ability to secure gainful employment. Thus, a VA examination (or examinations, as appropriate) is necessary to render a decision in this case. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination or examinations, as necessary, to determine the effect of his service-connected disabilities, both individually and combined, on his ability to secure and maintain substantially gainful employment. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a complete rationale for any opinion expressed should be provided. The claims file, as well as a copy of this remand, must be made available to the examiner(s) for review of the medical history in conjunction with the examination. The examiner(s) should specifically comment on the effect of the Veteran's PTSD and residuals of a radical prostatectomy, considered together, on his ability to secure gainful employment. Also, the examiner(s) should review the April 2007 and June 2007 VA examination reports in the course of rendering any opinion. 2. When the development requested has been completed, review the case 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 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 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). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).