Citation Nr: 1300762 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-41 671 ) 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 (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active military service from June 1945 to February 1947 and from September 1951 to July 1953, so during World War II and the Korean Conflict. This appeal to the Board of Veterans' Appeals (Board) is from a January 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, as support for his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. The Board advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Since, however, the claim requires further development before being decided on appeal, the Board is remanding it to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran's service-connected disabilities are bilateral hearing loss rated as 60-percent disabling, posttraumatic stress disorder (PTSD) rated as 30-percent disabling; residuals of cold injury of the left foot rated as 20-percent disabling, and tinnitus rated as 10-percent disabling - for a combined rating of 80 percent. See 38 C.F.R. § 4.25 (VA's combined ratings table). He was provided VA compensation examinations to assess the severity of these service-connected disabilities, including especially to determine whether they are so disabling as to preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, and 4.19. To this end, he was afforded multiple VA examinations in April 2012 addressing the severity of his hearing loss, tinnitus, PTSD, and left foot disabilities. However, the VA examiners only addressed the impact these service-connected disabilities had on his occupational functioning individually, not in combination, so did not consider the aggregate impact or effect of these service-connected disabilities on his employability. One examiner determined the Veteran's left foot disability did not cause any functional impairment and did not prevent him from obtaining gainful physical or sedentary employment. This examiner concluded, instead, that the Veteran's chronic obstructive pulmonary disease (COPD), which is not a service-connected disability, made it severely difficult for him to obtain gainful physical and sedentary employment due to shortness of breath and fatigue related to his COPD that increased with activity. The VA audiological examiner determined the Veteran's hearing loss impacted his ability to work in that he had difficulty understanding conversations, but that his tinnitus did not impact his ability to work. Whereas the VA mental examiner for the PTSD surmised there was just relatively mild occupational impairment. But, again, one must consider the combined effect of these service-connected disabilities on the Veteran's employability, not just each of them in isolation or piecemeal. And as the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). Once VA endeavors to provide an examination concerning a claim, even if not statutorily obligated to, it must provide an adequate one or notify the claimant why one cannot or will not be provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, this TDIU claim is REMANDED for the following additional development and consideration: (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. Obtain supplemental comment (addendum opinions) from the April 2012 VA compensation examiners concerning whether the Veteran's service-connected disabilities in combination, so in the aggregate not individually or piecemeal, are so disabling as to preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering only his service-connected disabilities (so not also his COPD, etc.), also not his advancing age, but his level of education, prior work experience and training. It is not enough merely to indicate some form of less physically demanding or sedentary work is still a viable possibility unless the examiners provide with specificity some explanation as to how the Veteran's service-connected disabilities comport with or will allow him to satisfactorily perform this type of job and not still amount to a mere accommodation. It therefore is essential the examiners discuss the underlying medical rationale of their opinions, if necessary citing to specific evidence in the file. If, for whatever reason, it is not possible or feasible to have the prior examiners provide this further comment, then have others do it that are qualified to make this necessary determination regarding employability. In this eventuality, the Veteran may need to be reexamined, but this is left the designees' discretion as to whether additional examinations are needed or responses instead may be provided by just reviewing the existing evidence in the claims file. 2. Then readjudicate this TDIU claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).