Citation Nr: 1309953 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-37 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In February 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The record reflects that, following his discharge from service, the Veteran worked for various employers as a laborer and a mechanic. He most recently worked as a vehicle fleet mechanic for Coca-Cola for 17 years, until he retired in October 2009, and he has not worked since that time. The Veteran is currently service-connected for the following disabilities: chronic acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) (50% disabling); ischemic heart disease (30% disabling); degenerative joint disease of the left ankle (10% disabling); degenerative joint disease of the right ankle (10% disabling); tinnitus (10% disabling); and residuals of shell fragment wound to the right shoulder and axillary region with retained foreign body (0% disabling). Such disabilities have resulted in a combined rating of 80% disabling since May 2009. At a November 2009 VA joints examination, the examiner concluded that the Veteran is capable of sedentary and light physical employment due to his ankle disabilities. At a November 2009 VA ear disease examination, the examiner concluded that the Veteran is capable of sedentary and physical employment due to his tinnitus. At a December 2009 VA PTSD examination, the Veteran indicated that he retired from his job at Coca-Cola due to interference from mental health symptoms, including low energy/motivation, problems with concentration, irritability/anger, and difficulty adapting to changes in the workplace. However, the examiner noted that there is no evidence that the Veteran would be unable to work in any capacity. The examiner opined that it is likely that occupational impairment would be far less if the Veteran worked in a more routine, less demanding position. The examiner concluded that the Veteran is not assessed to be unemployable solely due to his service-connected mental health symptoms. In a January 2010 statement, one of the Veteran's coworkers at Coca-Cola described the symptoms manifested by the Veteran that made it "impossible" for him to do the work he was required to do, including depression, short-term memory loss, anxiety, anger, inability to focus, lack of concentration, and inability to comprehend and follow instructions. In a January 2010 statement, the Veteran's wife described the Veteran's difficulties at work in the years prior to his retirement due to his mental health symptoms, and she noted that he did not want to take an early retirement but did so because he felt as though he had to as a result of such symptoms. An April 2010 VA treatment record noted the Veteran's report that there were two main things that contributed to his retirement in October 2009: his increasing difficulty concentrating, and his increasing irritability and low frustration tolerance. An April 2010 private treatment record noted the Veteran's report that he had taken early retirement secondary to PTSD. An August 2010 VA treatment record noted that the Veteran is in school. On remand, the Veteran should be asked to provide his educational history. In an October 2010 statement (which was resubmitted in September 2012), the Veteran's VA social worker stated that the Veteran's retirement was "hastened" by a gradual loss of ability on the job due to memory loss. At a December 2010 VA heart examination, the examiner concluded that the Veteran's ischemic heart disease did not impact his ability to work. The record reflects that the Veteran is receiving disability benefits from the Social Security Administration (SSA), awarded by a February 2011 decision. A request must be made to the SSA for all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). At his February 2013 hearing, the Veteran testified that he did not go to college or to a vocational school to learn to be a mechanic, but instead he learned on the job, straight out of the military. He also described the current severity of his service-connected disabilities. There is no opinion of record which addresses the extent to which all of the Veteran's service-connected disabilities (chronic acquired psychiatric disorder to include PTSD; ischemic heart disease; degenerative joint disease of the left ankle; degenerative joint disease of the right ankle; tinnitus; and residuals of shell fragment wound to the right shoulder and axillary region with retained foreign body) when viewed together affect his ability to obtain or retain substantially gainful employment, without regard to his age or nonservice-connected disabilities. The Veteran is to be scheduled for a VA general medical examination conducted by a physician in order to obtain such an opinion. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should ask the Veteran to provide his educational history, in light of the August 2010 VA treatment record which noted that he is in school. 2. The RO/AMC should contact the SSA and request copies of all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. If provided by disc, the RO/AMC should print out the records and associate the copies with the claims file. Any negative search result is to be noted in the record and communicated to the Veteran. 3. After the completion of the above-requested development, the RO/AMC should schedule the Veteran for a VA general medical examination conducted by a physician. The claims folder must be reviewed in conjunction with the examination. The examiner is to determine the extent to which all of the Veteran's service-connected disabilities (chronic acquired psychiatric disorder to include PTSD; ischemic heart disease; degenerative joint disease of the left ankle; degenerative joint disease of the right ankle; tinnitus; and residuals of shell fragment wound to the right shoulder and axillary region with retained foreign body), when viewed together, affect his ability to obtain or retain substantially gainful employment, without regard to his age or nonservice-connected disabilities. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completion of all of the above, the RO/AMC should review the expanded record and readjudicate the issue on appeal. If such issue remains denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case, and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. 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 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 MARTIN 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).