Citation Nr: 1231908 Decision Date: 09/17/12 Archive Date: 09/24/12 DOCKET NO. 10-05 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from May 1962 to August 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. REMAND A September 2008 VA examination report shows that the Veteran indicated that he was currently employed as an iron worker, which he had been for the past ten to twenty years. The work was part time and the Veteran had lost no days of work in the last year. He had previously worked as a police officer. On his January 2009 claim, the Veteran reported that he worked as a police officer from 1966 to 1993. He had not left this employment due to disability. He believed that his disability began to affect his full-time employment in December 1994. On a form returned to VA in June 2006, the Veteran's former employer indicated that the Veteran worked as a police officer from October 1966 to January 1994. In an August 2009 written statement, the Veteran's representative indicated that the Veteran had worked part time as an ironworker for his brother-in-law for a brief period of time and never made more money than the poverty level. He stopped doing this work when his brother-in-law passed away in February 2009. In a January 2010 written statement, the Veteran asserted that he stopped working for his brother-in-law in February 2008 and, even when he had been working, it was limited to a few half-days per week, due to his disabilities. In March 2010, the Veteran underwent a VA examination to determine the current level of severity of his service-connected disabilities and to determine whether additional disabilities were related to service. No opinion was given as to whether his service-connected disabilities rendered him unemployable. The Veteran is currently service connected for coronary artery disease associated with diabetes mellitus type II (30 percent), diabetes mellitus type II (20 percent), peripheral neuropathy of each upper and lower extremity, associated with diabetes mellitus type II (10 percent each), and erectile dysfunction associated with diabetes mellitus type II (0 percent). The combined disability rating is 60 percent from February 25, 2008, and 70 percent from January 29, 2010. The Veteran, therefore, meets the schedular requirements for consideration for entitlement to a TDIU. 38 C.F.R. § 4.16. The Board finds that the evidence shows that the Veteran stopped working full time in 1993 or 1994. Furthermore, while he worked part time after that, it was only a few hours on a few days per week, and he was employed by his brother-in-law. This suggests that the Veteran's employment since 1993 or 1994 may have been protected employment. Furthermore, a review of the private medical evidence shows that most of the treatment he has received has been for service-connected disabilities. Therefore, the Board finds that a remand is necessary to determine whether the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. Accordingly, the case is REMANDED to the RO or Appeals Management Center (AMC) for the following action: 1. The RO or AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's TDIU claim. 2. Then, the Veteran should be afforded a VA examination to determine the nature and extent of all impairment due to his service-connected disabilities and the impact of the disabilities on the Veteran's ability to obtain and maintain substantially gainful employment. The claims folder and a copy of any pertinent evidence in Virtual VA that is not already of record must be made available to and reviewed by the examiner, and any indicated studies should be performed. The examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's service-connected disabilities are sufficient by themselves to preclude the Veteran from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. The rationale for all opinions expressed must also be provided. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to a TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final outcome warranted. No action is required of the Veteran until he is notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See 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. 2011). _________________________________________________ Shane A. Durkin 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) (2011).