Citation Nr: 1301406 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 07-25 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Togus, Maine (RO). The Veteran's claims file is in the jurisdiction of the VA Regional Office in Detroit, Michigan. In a September 2010 decision, the Board denied the Veteran's claim for entitlement to a TDIU. Subsequently, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on an October 2011 Joint Motion for Remand (JMR), in an October 2011 Order, the Court vacated the Board's September 2010 decision and remanded the claim to the Board for additional reasons and bases. In May 2012, a letter was sent to the Veteran in which he was given 90 days from the date of the letter to submit additional evidence or argument in support of his appeal prior to the Board's readjudication. In August 2012, the Veteran's representative requested an additional 90 days to submit evidence in support of the Veteran's claim. The Veteran's request was granted by the Board in August 2012, and the Veteran's representative was notified that he had until November 9, 2012 to submit additional evidence. In November 2012, the Veteran's representative submitted additional evidence in the form of VA treatment records and private treatment records along with a waiver of the Veteran's right to have the RO readjudicate the claim with the additional evidence. See 38 C.F.R. § 20.1304(c) (2012). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In support of his claim, the Veteran submitted a private medical opinion by M.C., M.D. prepared in August 2012. Dr. M.C. stated that he reviewed the Veteran's "medical record, service record, ancillary information" and opined that the Veteran was unemployable as a result of his service-connected posttraumatic stress disorder (PTSD), and indicated that the Veteran had been unemployable "since at least 2006, but in reality far earlier." Dr. M.C.'s opinion is quite detailed, and specifically discusses the finding made by the September 2006 VA examiner, who found that the Veteran was employable because he was capable of volunteering with veterans and performing other tasks. Dr. M.C. concluded that volunteer work is very different than employment, because volunteer work is under the Veteran's control and does not have the requirements of an occupational environment associated with it. Specifically, Dr. M.C. stated that "[o]ne cannot translate the minimal requirements of volunteer work to the rigid requirements of an occupational environment." Thus, Dr. M.C. found that, although the Veteran may be capable of volunteer work, he is not capable of any type of employment based solely on his service-connected PTSD. Unfortunately, it does not appear that Dr. M.C. reviewed the Veteran's entire medical records in making his opinion. In that regard, several VA treatment records dated in August 2010, September 2010, and October 2010 note that the Veteran was working part-time as a photographer for a newspaper in Elk Rapids, Michigan. This evidence is of particular significance, as Dr. M.C. concluded that the Veteran was unemployable since far earlier than 2006, but the evidence shows that the Veteran was employed in 2010. The record is unclear as to whether or not the Veteran still works as a photographer for a newspaper. As substantial evidence has been added to the claims file since the last VA examination addressing the Veteran's employability in 2006, and because the Veteran was granted service connection for ischemic heart disease in August 2011, bringing his combined disability evaluation to 70 percent, which meets the schedular percentage criteria for consideration under 38 C.F.R. § 4.16(a) (2012), the Board believes that the Veteran should be provided with a VA examination addressing his employability based on a complete review of the evidence of record. Accordingly, the case is REMANDED for the following action: 1. The RO must provide the Veteran with an examination to determine the effects of all of his service-connected disabilities, in combination, on his ability to maintain employment consistent with his education and occupational experience. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the case, the examiner must provide an opinion as to the following: * Whether it is at least as likely as not that the Veteran's service-connected disabilities alone, considered in combination, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience? The opinion provided must include an explanation of the bases for the opinion. If the requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion could not be provided without resort to speculation. 2. The RO must notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ U.R. POWELL 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).