Citation Nr: 1303583 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 08-06 752A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from June to December 1958 and from October 1960 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) in conjunction with an increased rating claim appealed from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The rating decision denied an increased rating for posttraumatic stress disorder (PTSD). In a September 2004 rating decision, the Veteran was denied entitlement to TDIU. He did not appeal the decision. In July 2005, the Veteran testified at a formal RO hearing. A transcript of the hearing is of record. In January 2012, the Board granted an increased rating of 50 percent for PTSD, effective August 30, 2006. The United States Court of Appeals for Veterans Claims (Court) decision in Rice v. Shinseki, 22 Vet. App. 447 (2009) found that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. The Board failed to address the implied claim for TDIU in the January 2012 decision. The Veteran appealed this issue to the Court, and in May 2012, the parties issued a Joint Motion to remand the case to the Board. The Court granted the motion, and the case has been returned to the Board. The Court did not vacate the Board's decision that the Veteran's PTSD warranted a 50 percent rating. 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 A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). Service connection has been established for PTSD, rated as 50 percent disabling; a left knee disability, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensably disabling. The Veteran's claim for an increased rating for PTSD, which provided the implied TDIU claim, was filed on August 30, 2006. From August 30, 2006, his combined disability rating is 60 percent disabling, and thus he does not meet the minimum percentage requirement for TDIU under 38 C.F.R. § 4.16(a). Thus, the Board has considered whether referral for extraschedular consideration is warranted. In October 2007, the Veteran was afforded a VA psychiatric examination. The examiner noted that prior to his assault at work in 2004 the Veteran's PTSD did not prevent him from working. However, after the 2004 assault he became unable to "return to his work as a prison guard due to risk to mental and physical health." Additionally, the examiner stated that "given his age, the fact that his last 10 years of employment were as a prison guard, and his [unemployment for] the past 3 years, [the examiner's] clinical opinion was that it would be very challenging for the Veteran to secure alternative gainful employment." The examiner indicated it was not possible to separate the effects of the Veteran's PTSD from active service and his reaction to the 2004 assault, but that in total, his psychiatric condition affected his "current unemployment and possible unemployability." Statements which note only that it was "possible" are merely speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions expressed in terms of "may" also implies "may" or "may not" and are too speculative to establish a plausible claim by themselves); see also Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (Medical opinions employing the phrase "may" or "may not" are speculative.). In determining whether a Veteran is entitled to a total disability evaluation based on individual unemployability due to service connected disorders, consideration is given to his level of education, special training, and previous work experience, but not to his age or impairment caused by disabilities that are not service connected. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). To receive a total disability evaluation based on individual unemployability due to service connected disorders, the Veteran's service-connected disabilities, standing alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Records show that the Veteran worked for 35 years as a foreman in a steel mill. He then worked as a guard at a correctional institution for roughly 8 years. He was assaulted during this employment in 2004, and sustained an injury to his knee. He was unable to return to his correctional guard employment and testified that he then retired. The record indicates he has a high school diploma. VA has the duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. See Friscia v. Brown, 7 Vet. App. 294 (1994) (holding in the case of a claim for TDIU, that VA has a duty to obtain medical opinions as to employability). In this case, there is no opinion of record regarding the Veteran's ability to retain or maintain any gainful employment that takes into account solely his service-connected disabilities without regard to age. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran corrective VCAA notice which informs the Veteran of the evidence necessary to establish entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. Provide the Veteran with a VA Form 21-8940, Application for Increased Compensation based on Unemployability. Subsequently forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employers listed on the Veteran's submitted VA Form 21-8940. 2. Afford the Veteran appropriate VA examination(s) to obtain an opinion as to the impact of his service-connected disabilities on his ability to work. The Veteran's claims file, to include a complete copy of this REMAND, and access to Virtual VA must be provided to the examiner(s) designated to examine the Veteran, and the examination report(s) should note review of the file. The examiner(s) should interview the Veteran as to his employment and education history. The examiner(s) should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that his service-connected PTSD; left knee disability, tinnitus and hearing loss preclude employment consistent with the Veteran's education and occupational experience, without taking into account his age or any nonservice-connected disability. The examiner(s) should set forth a rationale for the conclusions reached. 3. After ensuring that the requested actions are completed, the RO should re-adjudicate the claims on appeal. The claim for an award of TDIU benefits should take into consideration provisions of 38 C.F.R. § 4.16(b) and whether the claim should be referred to the Director, Compensation and Pension Service, for extra- schedular consideration. If the benefits sought are not fully granted, the RO must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his attorney until they are notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ MICHAEL LANE 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).