Citation Nr: 1113982 Decision Date: 04/08/11 Archive Date: 04/15/11 DOCKET NO. 09-42 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Andrew R. Rutz, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from November 1967 to November 1971. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's claim for entitlement to TDIU due to his service-connected disabilities. In November 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a copy of this transcript has been associated with the record. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran has alleged that he is unable to obtain employment due to the affects of his service-connected disabilities. Specifically, the Veteran has argued that he was forced to leave his employment as a trucker due to the effects of medication, which he is taking to treat his service-connected conditions, in particular his service-connected posttraumatic stress disorder (PTSD). See the Veteran's statements of January, April, May and December 2009, and June 2010, notice of disagreement of April 2009, substantive appeal (VA Form 9) of October 2009, and the hearing transcript pges 7-10, 11, 13; see also the Veteran's spouse's statement of January 2009. The Veteran has also indicated that his medications in concert with his other service-connected conditions, including his peripheral neuropathy, also either collectively or individually, render him unable to obtain employment. See the Veteran's December 2009 statement, and the hearing, generally. Finally, the Board notes that the Veteran's representative has submitted a private treatment record dated in November 2010 from M. Graham, M.A., Psychologist, which indicates that the Veteran's PTSD manifestations have worsened and may therefore render him unemployable, and also has indicated that complications from the Veteran's diabetes mellitus caused him to leave his prior employment as a truck driver. TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2010). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this case, the Veteran has the following service-connected disabilities: PTSD, rated as 50 percent disabling; Type II diabetes mellitus, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; peripheral neuropathy of the left lower extremity, rated as 10 percent disabling. Thus, the combined service-connected disability rating is 70 percent, with consideration of the bilateral factor. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. As such, the percentage criteria for TDIU are met. 38 C.F.R. § 4.16(a). Consequently, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Id. Notably, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). As noted above, the Veteran has indicated multiple times that his medications are the primary cause of his unemployment. The Veteran's last employer submitted a letter indicating that the Veteran voluntarily left his employment. See the March 2009 VA Form 21-4192 submitted by Averitt Express. However, the Veteran has indicated that this was because he was "grounded" due to his medications, and ultimately had to resign or stop taking the medication, and that he chose to resign. See the Veteran's April 2010 statement. The Veteran's statements are, to some extent, supported by the employment records dated in November 2008, which indicate that the Veteran's medication was a disqualifying medication for his last employer. The Board notes that the Veteran continues to be prescribed the medication indicated as problematic in the November 2008 employer records. The Veteran's spouse has also indicated that the Veteran was required to leave his employment due to his medication. See the Veteran's spouse's statement of January 2009. The Veteran's representative, at his November 2010 Board hearing, requested that the Veteran's claim for TDIU be remanded to the AOJ for further review. See the hearing transcript pg. 2. The Veteran's representative ahs argued that this is due to the fact that the AOJ utilized an inappropriate standard, and did not consider if the Veteran's service-connected disabilities precluded him from obtaining "substantially gainful employment" in light of the Veteran's educational and occupational history. See the hearing transcript pges. 2-5. The Veteran has also indicated that his disabilities, and the medications prescribed for treatment of those disabilities cause him to be unable to work in his trained field of law enforcement, or in the any physical capacity. Id. pges. 10, 11; see also the Veteran's December 2009 statement. The private treatment record dated in November 2010 from Dr. Graham indicates that the Veteran's PTSD has increased in severity and that his disabilities affect his employment. Therefore, there is evidence that the Veteran is currently unemployed, and that this may be related to his service-connected disorders. Pursuant to 38 U.S.C.A. § 5103A (West 2002), VA's duty to assist includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." The standard for requiring a VA medical examination is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability." See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The duty of VA to provide a VA medical examination extends to examinations regarding claims for a higher rating. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 4.2 (a rating must be adequate for rating purposes). The only VA medical examination which has been provided to the Veteran regarding his disabilities was a VA psychiatric examination in September 2008. No VA medical examinations have been provided to review the Veteran's other service-connected disabilities, either singly or in concert, or the treatment thereof, render him unable to obtain substantially gainful employment. Therefore, a remand is required for appropriate VA examinations and opinions to assess whether the Veteran's service-connected disorders, standing alone or taken together, or the treatment thereof, prevent him from securing or following a substantially gainful occupation. Second, the Veteran's VA treatment records on file date to May 2010. So, if he has since received additional relevant treatment, these records should be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Finally, as per the Veteran's representative's request the AOJ should consider the Veteran's claim in light of any new evidence obtained applying the standards found at 38 C.F.R. § 4.16(a). Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant VA medical treatment records regarding any treatment that the Veteran has received for his service-connected disabilities from April 2010 to the present. All attempts to secure such records must be documented in the claims file. If certain records are unavailable or simply do not exist, or further attempts to obtain them would be futile, this fact should be fully documented in the claims file. 2. After completion of the above, schedule the Veteran for comprehensive VA examinations, by appropriate specialists, to determine the current severity of his service-connected PTSD, diabetes mellitus, and peripheral neuropathy of both lower extremities. The examiners should review the claims file and note this review in their reports. All indicated tests and studies should be undertaken. The Veteran is hereby advised that a failure to report for his scheduled VA examinations, without good cause, may have adverse consequences for his claim. The examination should include any diagnostic testing or evaluation deemed necessary. Please provide the VA psychiatric examination last, the VA psychiatric examiner should be requested to provide both a review of the Veteran's PTSD and its effects, and also consider the effects of the Veteran's other service-connected disabilities and the medications prescribed on his ability to obtain substantially gainful employment. The examiners should specifically address the following issues: (A) Do the Veteran's service-connected disabilities, or the medication and treatment thereof, cause him to be unable to pursue substantially gainful employment? Comment generally on: the functional and industrial impairment caused by each of the Veteran's service-connected disabilities, and the Veteran's history relating to the medications prescribed for treatment of his disabilities as well as the interference they cause to his ability to pursue substantially gainful employment, noting the effects of each service-connected disability in turn. (B) Determine the extent to which each service-connected disability contributes to the Veteran's employability or unemployability. (C) Indicate whether the service-connected disabilities taken together result in the Veteran's unemployability. Please also note if the treatment for the Veteran's disorders, including his prescribed medications, renders him incapable of pursuing substantially gainful employment. The examiners should provide a rationale and explanation for all conclusions reached. The examiner should not base an opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331- 332 (1991). 3. Then, review the Veteran's claims file and any new information obtained to ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication of the claim. 4. Readjudicate the claim for TDIU for service-connected disabilities on a schedular basis under 38 C.F.R. § 4.16(a). If his claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) that includes a summary of the evidence and discussion of all pertinent regulations. The Veteran and his representative should be given an opportunity to respond to the SSOC 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). _________________________________________________ A. BRYANT 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).