Citation Nr: 1302437 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 09-04 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION The Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2007 of a Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. 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 VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the Veteran from securing or following a substantially gainful occupation. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability 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). When the Veteran filed his claim for TDIU, he was service connected for squamous skin carcinoma, rated at 60 percent. He was also service connected for bilateral hearing loss, rated at 0 percent, and tinnitus, rated at 10 percent. Thus, the Veteran meets the schedular criteria for consideration of a TDIU claim. He was provided a VA examination in September 2007 regarding the effect of the residuals for squamous skin carcinoma had upon his unemployability. Since that time, however, the Veteran has been service connected for posttraumatic stress disorder (PTSD), currently rated at 30 percent, and diabetes mellitus, type II (diabetes), currently rated at 20 percent. The Veteran has had VA examinations and the examiners have offered opinions regarding the relationship between the additional disability, alone, such as PTSD or diabetes, and employability, and have also determined whether the diabetes disability caused or aggravated other disabilities such as peripheral neuropathy or hypertension. The record, however, does not contain an opinion as to whether the Veteran's service-connected disabilities not just alone, but also combined together, and not in conjunction with his nonservice-connected disabilities, precludes the Veteran from employment. The Board has therefore determined that the Veteran should be provided a new VA examination regarding the combined effect of the Veteran's service connected disabilities has upon his employability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided a VA examination to ascertain whether he is unable to secure or follow a substantially gainful occupation due to the combined effects of all of his service-connected disabilities. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner must determine whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. Following the examination and a review of the service and post service medical records, the VA examiner must state whether the Veteran is unable to obtain or retain employment due solely to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities, to include the approximate date of onset of such unemployability. If the examiner determines that no single service connected disability precludes him from securing and maintaining gainful employment, then the examiner should determine whether two or more of the disabilities together so preclude him from securing and following substantially gainful employment. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The examiner is reminded that consideration should not be given to the effect, if any, on his employability of the Veteran's age or any nonservice-connected disabilities. The examiner is also asked to specifically comment on a letter dated in January 2009 by the Veteran's treating physician stating that the Veteran is unemployable due to diabetes and recurring skin cancer. 2. After the development requested has been completed, adjudicate the claim for TDIU. If the benefit sought is denied, furnished the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).