Citation Nr: 1301165 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-34 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability rating based upon individual unemployability based on service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Providence, Rhode Island, Department of Veterans Affairs (VA) Regional Office (RO), which denied, amongst other issues, a TDIU. The Veteran disagreed with the denial of the TDIU and the current appeal ensued. 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 The Veteran asserts that he is totally disabled due to all of his service-connected disabilities. He also maintains that his primary care physician told him to consider retirement due to his generalized anxiety disorder and posttraumatic stress disorder (PTSD). His doctor stated that his psychiatric disorders have been reactivated due to significant job stresses at work. A review of the record reveals that the Veteran has mental health records in the Boston CAPRI since May 2011. However, none of those records are attached to the claims folder or to Virtual VA. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet.App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet.App. 611, 613 (1992). Those VA mental health records and any other VA outpatient treatment records that may have relevance to this unemployability claim, if any, should be obtained and associated with the claims folder. Additionally, the Veteran is service connected for fracture, right fifth metacarpal phalangeal joint with flexion deformity; anxiety disorder not otherwise specified (previously rated as PTSD); type II, diabetes mellitus; compound fracture, healed right radius,; tinnitus; superficial healed scars, right buttocks; traumatic rupture of the right eardrum; hearing loss; erectile dysfunction associated with type II, diabetes mellitus; and scar of the right wrist. His total disability rating is 70 percent. TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a) (2012). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. The Veteran underwent VA examination for his various service-connected disabilities in April 2008, and he underwent additional VA psychiatric examination in December 2009. In reviewing the various examination reports, none of the examiners indicated that the Veteran's single, service-connected disability they examined prevented him from engaging in substantially gainful employment. However, none of the examiners discussed the Veteran's service-connected disabilities in the aggregate, when determining whether he was unemployable. In this regard, the Veteran should be provided a VA examination and an opinion should be rendered to determine whether his service-connected disabilities, alone or in aggregate, render him unable to secure or follow a substantially gainful occupation. Therefore, a VA examination and opinion is also required to determine, to the extent possible, whether his service-connected disabilities preclude substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. The Veteran should be afforded a VA examination with opinion to determine whether he is unemployable solely due to his service-connected disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should be requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities alone, or in the aggregate, are of such severity to result in unemployability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history[,]' 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, must be made available to the examiner for review. The examiner should explain the rationale for any opinion given regarding the effect of the Veteran's service-connected disabilities on his ability to obtain or maintain employment, to include discussion of obstacles and challenges he might face, and his capability for performing sedentary employment in light of his past employment experience. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 3. Then, adjudicate the issue on appeal. If the benefit sought on appeal is not granted, he and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. The Veteran 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. 2012). _________________________________________________ F. JUDGE FLOWERS 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).