Citation Nr: 1303587 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 08-04 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In July 2011, the Board issued a decision denying entitlement to TDIU. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a May 2012 Order, the Court vacated the July 2011 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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 This 66-year-old Veteran seeks entitlement to a TDIU. Specifically, he argues that, although he is employed, he works at a family-owned business which constitutes sheltered employment. In correspondence from the Social Security Administration (SSA) dated in April 2011, the Veteran's expected total earnings for 2011 were indicated to be $26,000. The record reflects that he completed a 10th-grade education, but did not complete a General Educational Development (GED) test. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). Advancing age and nonservice-connected disability may not be considered in making this determination. 38 C.F.R. § 3.341(a), 4.19 (2012). Marginal employment shall not be considered substantially gainful employment. For purposes of this section, 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran was afforded a VA posttraumatic stress disorder (PTSD) examination in April 2005, at which time it was indicated that he was employed fulltime as a manager at his family's bar. The examiner noted that the Veteran's job duties included scheduling work for others, running errands, and overseeing operations, although he would need to calm himself down when the bar became crowded. The examiner assigned him a Global Assessment of Functioning (GAF) score of 55, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. In correspondence dated in April 2005, the Veteran's private examiner indicated that the Veteran was usually active in the management of his bar, although he professed a stern indifference toward his business despite the upcoming holidays. In correspondence dated in February 2006, the Veteran's sister indicated that she hired the Veteran at their family-owned bar despite his known problems with drinking and occasional outbursts. She further indicated that she would not have hired the Veteran if he had not been her brother, and that she keeps "a close eye on him when things start to get out of hand." An August 2006 VA mental health progress note indicated that the Veteran had no interaction of any type and assigned him a GAF score of 45, indicative of serious symptoms or any serious impairment in social, occupational, or school functioning. The Veteran was afforded a VA peripheral neuropathy examination in October 2012, at which time the examiner opined that the Veteran's neuropathy impacted his ability to work. Specifically, his bilateral upper extremity carpal tunnel syndrome and neuropathy limited his ability to work as it caused "decreased grip strength and dropping of objects." Furthermore, his lower extremity neuropathy limited any work where prolonged standing or walking was required. In reading through the entire record, the Veteran went from regularly reporting that he was working full time in the family business in a management position to doing maintenance work and some bookkeeping. As such, the Board found his allegations to lack credibility and denied his claim in a July 2011 decision. The Veteran then appealed the Board's decision to the Court, and in a May 2012 Order, the Court vacated the July 2011 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion. Specifically, the Joint Motion stipulated that the Board erred in failing to properly consider and address the February 2006 correspondence from the Veteran's sister regarding the Veteran's employment at their family owned bar. Significantly, the Board notes that at the time of the July 2011 Board decision, the Veteran was service-connected for the following disabilities: PTSD, rated as 70 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and hearing loss, rated as zero percent disabling. His combined evaluation for compensation was 80 percent at that time. However, since the July 2011 Board decision, the Veteran has also been awarded entitlement to service connection for carpal tunnel syndrome of the right wrist, rated as 30 percent disabling; and carpal tunnel syndrome of the left wrist, rated as 20 percent disabling. He was awarded entitlement to a special monthly compensation on the basis of being housebound as well. His combined evaluation for compensation is currently 90 percent. As the Veteran's overall disability picture has changed since the July 2011 decision, the Board finds that the RO must schedule the Veteran for a current VA examination to ascertain the severity of his service-connected disabilities, and their effect on his ability to obtain and retain gainful employment. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Lastly, the Board is troubled by the Veteran's allegations that he is not working for RLC when a cursory research into the business indicates that the Veteran is the owner of the company. As recently as 2010, a local newspaper article labeled him as the "present owner." See Towns Times newspaper, April 16, 2010, Volume 17, Issue 1 on page 3. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran to provide him an opportunity to identify all non-VA medical providers who have treated him for his service-connected disabilities since July 2012. The RO should ask the Veteran to provide a statement as to what his job as the owner of RLC has entailed over the years and how that affects his sister's ability to hire him as an employee. If the Veteran claims he is no longer the owner, he should submit official documentation to substantiate this fact, including the date this occurred. 2. Regardless of the Veteran's response regarding non-VA treatment for his service-connected disabilities, the RO must attempt to obtain the Veteran's updated VA treatment records. Missing are the following records: * Records between September 2007 to January 2011 and * Records from October 2012 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. Thereafter, the Veteran must be afforded an appropriate VA examination to determine the effect of his service-connected disabilities on his ability to obtain and maintain employment. The Veteran's claims file must be made available to the examiner for review in conjunction with the examination. All tests and studies deemed necessary must be performed. The VA examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the case and the claims file, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities standing alone preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The Veteran's age and nonservice-connected disability may not be considered in making this determination. 4. The RO must notify the Veteran that it is his responsibility to report for any VA examination scheduled, 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 any 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. 5. After completing the above, and any other development deemed necessary, the RO should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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 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). _______________________________________________ Alexandra P. Simpson Acting 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).