Citation Nr: 1300149 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 09-32 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1966 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to TDIU. The Veteran timely appealed that decision. The Veteran and his sister testified at a Board hearing before the undersigned Veterans Law Judge in August 2012; a transcript of that hearing is associated with the claims file. 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 Currently, the Veteran is service-connected solely for his PTSD; such has been evaluated as 70 percent disabling since September 20, 2005. The Board therefore finds that the Veteran initially meets the threshold for a schedular evaluation for his TDIU. See 38 C.F.R. § 4.16(a) (2012). The Board notes that prior to filing his claim for TDIU in February 2008, the Veteran underwent a VA examination for his service-connected PTSD in December 2007, at which time the Veteran's unemployment was shown to due to his service-connected PTSD as well as his nonservice-connected lumbar spine disorder, for which he has been receiving Social Security benefits since 1986 when he last worked as a ranch hand. The Veteran was shown to be unemployable in a July 1994 VA examination for his PTSD solely due to his lumbar spine disorder which was incurred in 1978. The Veteran last underwent a VA examination for his PTSD in January 2011; however, the examiner-who noted that the Veteran had not worked since 1986 due to a back injury-did not render an opinion regarding the Veteran's ability to obtain and maintain substantially gainful employment with respect to his PTSD. As the sole opinion-from the December 2007 VA examination-to address employability noted that the unemployability is due to both service-connected and nonservice-connected disabilities, the Board finds that such opinion is inadequate as such an opinion should be without regard to the Veteran's nonservice-connected disabilities or age. Accordingly, the Board finds that a remand is necessary in this case in order to afford the Veteran a VA examination with addresses whether he is unemployable due to his service-connected PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Beaumont VA Medical Center, or any other VA medical facility that may have treated the Veteran, since May 2012 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment or evaluation that he may have received for his PTSD which are not currently of record. After securing the necessary release forms, attempt to obtain and associate those identified records with the claims file. If records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA general medical examination. The examiner should review the claims file in conjunction with the examination and indicate that such review has occurred. Following a claims file review and examination, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD is sufficient to preclude substantially gainful employment in light of his professional qualifications and employment history and without consideration of his age or any nonservice-connected disorders. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of entitlement to TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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. 2012). _________________________________________________ J. A. MARKEY 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) (2012).