Citation Nr: 1113173 Decision Date: 04/04/11 Archive Date: 04/13/11 DOCKET NO. 09-48 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the above claims. 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 In December 2007, the Veteran submitted a claim for TDIU. He is service-connected for residuals of prostate cancer with erectile dysfunction, rated as 60 percent disabling. The evidence shows that the Veteran's residuals of prostate cancer are erectile dysfunction and incontinence. In the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In connection with his claim for TDIU, the Veteran was afforded a VA examination in December 2008. The examiner opined that the Veteran's combined service-connected and nonservice-connected conditions prevented him from being gainfully employed for light or heavy duty. The examiner further stated that he would give equal weight to the prostate cancer and urinary incontinence as he would give to the nonservice-connected disabilities as they equally prevented him from being able to work for light or heavy duty. The examiner then provided opinions on each individual residual of the Veteran's service-connected prostate cancer and opined that the Veteran's erectile dysfunction and prostate cancer did not prevent him from being gainfully employed for light or heavy duty and opined that his urinary incontinence did prevent him from being employed for heavy duty, but not light duty. Based on the examiner's opinions, it is unclear whether the Veteran's residuals of prostate cancer render him unable to secure and follow a substantially gainful occupation. 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. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The December 2008 VA examination is susceptible to multiple fair, but inconsistent, meanings and must be clarified. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); Daves v. Nicholson, 21 Vet. App. 46 (2007). Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the VA physician who examined the Veteran in December 2008, if available, for an addendum. If the physician is unavailable, or if the examiner determines that another examination is warranted, schedule the Veteran for an appropriate VA medical examination to determine the severity of his service-connected disability (residuals of prostate cancer, rated as 60 percent disabling) and whether it renders him unable to secure and follow a substantially gainful occupation. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner(s) should review the results of any testing prior to completion of the report. The examiner should specifically state whether it is at least as likely as not the Veteran's service-connected disability (residuals of prostate cancer, rated as 60 percent disabling) without regard to his age or the impact of any nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. Complete rationale for any opinion should be provided. 2. Then, readjudicate the Veteran's claim on appeal with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claim remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. E. LARKIN 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).