Citation Nr: 1300740 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-09 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to April 1977. This matter came to the Board of Veterans' Appeals (Board) from a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in October 2012. In June 2008, the Veteran testified at a RO hearing before a Decision Review Officer (DRO) and in March 2012 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; the transcripts are of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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. §§ 3.340 and 4.16(a) (2012). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is in effect for the following disabilities: status post medical meniscus with degenerative joint disease, status post left knee prosthesis, rated 30 percent disabling; status post right knee replacement, rated 30 percent disabling; hypertension, rated 10 percent disabling; varicosities, postoperative stripping, left ankle area, rated 10 percent disabling; adenocarcinoma of the prostate, rated 100 percent disabling from December 15, 2009, and 10 percent disabling from October 1, 2011; gout, rated noncompensably disabling; hearing loss, right ear, rated noncompensably disabling; and, radiation colitis status post laparoscopic sigmoid colectomy associated with adenocarcinoma of the prostate, rated 100 percent disabling from February 7, 2011, and noncompensably disabling from April 1, 2011. His combined rating, after reduction of the prostate cancer and colitis ratings, was 70 percent, and he met the criteria for consideration of a TDIU on a schedular basis because his bilateral lower extremity disabilities are treated as a single disability for that purpose. See 38 C.F.R. § 4.16(a). Thus, the question remains as to whether the Veteran's disabilities render him unable to secure or follow a substantially gainful occupation. The evidence of record reflects that the Veteran was awarded disability benefits from the Social Security Administration (SSA) effective November 1994; however, such records are unavailable. In October 2008 correspondence from the SSA it was indicated that the Veteran's SSA records have been destroyed. Although the Veteran's records are unavailable, an attempt should be made to obtain the award letter granting SSA disability benefits, effective November 1994. 38 C.F.R. § 3.159(c)(2) (2012). The Veteran's post-service employment appears to be in question. The evidence of record reflects that during the Veteran's period of active service in the United States Air Force, he served as an air traffic controller. Based on June 2008 RO hearing testimony, the RO made a finding in the September 2010 supplemental statement of the case that the Veteran was employed as a civilian air traffic controller from 1977 to 1994 at Keesler Air Force Base (AFB), and after the civilian contract ended the Veteran went to work in a storeroom at Keesler AFB. The Veteran asserts that he worked in the storeroom until November 1994 but then stopped working due to his bilateral knee disability and gout. But the November 2009 VA examination report reflects the Veteran's assertion that he never worked as a civilian air traffic controller and only worked in the storeroom from 1977 to 1994. The Board notes that although the Veteran has submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, such submission is incomplete. He has indicated that he was too disabled to work as of November 1994 but has not supplied a list of his employment the last five years he worked. Thus, the Veteran should be requested to complete another VA Form 21-8940 pertaining to his employment history. In May 2009, the RO sent correspondence to the National Personnel Records Center (NPRC) to obtain information pertaining to the Veteran's employment at Keesler AFB. The response, however, was pertaining to the Veteran's employment at the VA Medical Center (VAMC) in Biloxi, Mississippi, from April to June 1978. It does not appear as if a negative response, or any response, has been received pertaining to the Veteran's employment at Keesler AFB. Any and all attempts should be made to obtain information from the appropriate repository pertaining to the Veteran's employment at Keesler AFB from 1977 to 1994. Id. The November 2009 VA examiner conducted a physical examination of the Veteran and opined that the Veteran's service-connected disabilities would not prevent him from doing sedentary employment but would probably prevent him from doing physical full-time employment. Since this examination, the evidence of record reflects that the Veteran uses a scooter to mobilize. He asserted at the March 2012 Board hearing that this was due to his service-connected bilateral knee disabilities. In light of the fact that the November 2009 VA examination was conducted over three years ago and in light of evidence asserting a lack of mobility, the Board finds that the Veteran should be afforded a new VA examination to assess whether his service-connected disabilities constitute marked interference with employment, or affects his ability to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request the Veteran's award letter from SSA pertaining to the grant of SSA disability benefits effective November 1994. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Request that the Veteran complete in full a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, pertaining to his employment history. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 3. Contact the appropriate repository, to include Keesler AFB, to obtain information pertaining to the Veteran's employment at Keesler AFB from 1977 to 1994 to include in the capacity as a civilian air traffic controller or storeroom clerk. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 4. The Veteran should be scheduled for an appropriate VA examination(s) with a physician(s) with appropriate expertise to assess the impact of the Veteran's service-connected disabilities (status post medical meniscus with degenerative joint disease, status post left knee prosthesis,; status post right knee replacement; hypertension; varicosities, postoperative stripping, left ankle area; residuals, adenocarcinoma of the prostate; gout; hearing loss, right ear; and, radiation colitis status post laparoscopic sigmoid colectomy associated with adenocarcinoma of the prostate) on his ability to work. The examiner should attempt to distinguish the impairment related to his service-connected disabilities, and other nonservice-connected disabilities. The examiner should provide supporting rationale for this opinion. 5. After completion of the above, the RO should review the expanded record and readjudicate the claim of entitlement to a TDIU. If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655. The Veteran and his representative have 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 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). _________________________________________________ JAMES L. MARCH 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).