Citation Nr: 1124950 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 06-05 900 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from April 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 206 rating determination by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan. This case has previously come before the Board. In December 2009, the issue was remanded to the agency of original jurisdiction (AOJ) for additional development. The case has been returned to the Board for further appellate review. The Board notes that a March 2010 rating decision reflects service connection for right hand arthritis was granted. This represents a full grant of the benefits sought in regard to that issue. The Veteran had a hearing before a Decision Review Officer (DRO) in May 2006. A transcript of that hearing is contained in the record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is unemployable as a result of service-connected disability. Having reviewed the evidence, the Board finds further development is in order. In that regard, in an August 2005 statement, the Veteran's most recent employer related that the Veteran was terminated in January 2003. It is noted that he was no longer able to interact with co-workers, customers, and management as a result of his posttraumatic stress disorder (PTSD). In addition, the June 2010 VA examination report notes symptoms, to include difficulty maintaining productive relationships with supervisors, as well as loss of energy, tiredness and fatigue, and the diagnoses entered were PTSD and dysthymia. The examiner stated, in pertinent part, as follows: [T]he symptoms of anxiety may decrease his industrial capacity and result in job performance problems. The types of jobs limited because of the veteran's service-connected anxiety disability would include those requiring public contact, multi-tasking or firm deadlines. . . . The veteran's inability to obtain or maintain substantially gainful employment IS NOT CAUSED BY OR A RESULT OF service-connected anxiety disability. RATIONALE FOR OPINION GIVEN: The veteran's inability to work is the result of multiple medical problems including obesity, arthritis, hearing loss, and loss of exertional capacity. The Board notes that while the examiner concluded the Veteran is unemployable, no opinion was specifically provided as to whether unemployability is due solely to service-connected disabilities. Thus, an opinion should be obtained, stated in the positive or negative in the specific terms noted in paragraph number 1 below, in regard to whether the Veteran is unemployable solely due to service-connected disabilities. The Board notes the Veteran's service-connected disabilities include anxiety reaction with history of PTSD, rated as 50 percent disabling; scars of the right index finger, residuals of felon with reduced strength and atrophy, rated as 10 percent disabling; right hand arthritis, residuals of felon with reduced strength and atrophy, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and right ear hearing loss, rated as 0 percent disabling, and although he does not meet the regulatory threshold for consideration for TDIU on a schedular basis, it is established VA policy 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. The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (2010). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the June 2010 VA examiner, if available; otherwise another VA examiner. Request an opinion specifically in regard to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran is unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities. A complete rationale should accompany any opinion provided. 2. Thereafter, refer the case to the Director of the Compensation and Pension Service for a determination as to whether the claimant's disability picture warrants the assignment of an extraschedular TDIU. 3. In light of the above, the claim should be readjudicated. The AOJ should ensure all directives in this remand have been accomplished, to the extent possible, to include review of any medical opinion obtained for completeness and to make certain that a response to all questions posed has been provided, and if not, further development should be undertaken in that regard. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the Veteran afforded a reasonable opportunity in which to respond thereto. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).