Citation Nr: 1309018 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-26 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2012, the Veteran and his wife testified at a video-conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The record shows that the Veteran is not working and the evidence suggests that he may be unemployable due, at least in part, to his service-connected diabetes mellitus type II (DM) and peripheral neuropathy (PN) of the upper and lower bilateral extremities. Specifically, the Veteran testifies that he had to stop working because of pain and muscle fatigue in his upper and lower extremities. VA treatment records show that in February 2004 the Veteran was still working part-time as the manager and maintenance man for a mobile home community, and planned to retire soon at the age of 65. A statement from his employer reflects that he had been doing this work since April 1986, and but had changed to part-time work "due to his disability." In March 2004 that employment ended. A VA treatment record dated August 2004 shows that the Veteran was retired and remained active working around his home with building projects, fishing, and other outdoor activities. A September 2009 VA treatment note shows the Veteran had been working part time but had to quit because of problems with his hand and hoped to find a job again. A VA record dated February 2010 contains the somewhat confusing note "he hopes to find a job again, he is working part time." At the time of his hearing, the Veteran testified that he was unemployed. In various lay statements and at his hearing, the Veteran also attributed his inability to work to pain and psychiatric problems. He is diagnosed with fibromyalgia and PTSD, neither of which is service-connected. The Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to ascertain whether it is at least as likely as not that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. See Friscia v. Brown, 7 Vet. App. 294 (1994). Finally, the most recent relevant treatment records in the claims file are dated June 2010, from the Chattanooga VA Community Outpatient Based Clinic (CBOC). The Veteran may have received additional treatment in the intervening time. Therefore, on remand, any treatment records from the Chattanooga CBOC dated from June 2010 to the present should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding private treatment records dated after June 2010 pertaining to his service-connected disabilities relevant to the TDIU claim. Take appropriate measures to request copies of any outstanding records of pertinent private medical treatment and associate these with the claims file. Obtain any relevant VA treatment records from the Chattanooga CBOC dated from June 2010 to the present 2. Notify the Veteran that he may submit statements, including from others, describing the service-connected disabilities' symptoms and impact on his ability or inability to work. 3. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the impact of his service connected disabilities (diabetes mellitus type II (DM) and peripheral neuropathy (PN) of bilateral upper and lower extremities) on his ability to secure or follow a substantially gainful occupation. The claims file should be made available to and reviewed by the examiner, and such review should be noted in his or her report. All appropriate tests and studies should be conducted. The examiner should specifically describe what type of employment activities would be limited due to the Veteran's DM and PN. The examiner should also distinguish between symptoms that are attributable to the DM and PN, and symptoms that are attributable to nonservice-connected diagnoses (e.g., PTSD and fibromyalgia). Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, (DM and PN), render him unable to secure or follow a substantially gainful occupation. The examiner should take into consideration the Veteran's level of education, special training, and previous work experience. A complete rationale for any opinion expressed and conclusion reached should be set forth in the report. 4. After undertaking any additional development deemed appropriate, the RO should readjudicate the Veteran's claim. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to respond before the claims file is returned to the Board for further appellate consideration. The Veteran 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 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 E. KILCOYNE 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).