Citation Nr: 1311440 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 07-34 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1949 to February 1950 and from March 1951 to June 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Tiger Team at the Regional Office (RO) in Cleveland, Ohio, which denied entitlement to TDIU. The Waco, Texas, RO maintains jurisdiction. In March 2010, the Veteran canceled the Board hearing scheduled for April 2010. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claim was before the Board in June 2010 and September 2012 for additional development. Unfortunately, further development is necessary. 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 TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). To qualify for TDIU on a schedular basis, there must be one disability ratable at 60 percent or more, or if there is more than one service-connected disability, at least one disability ratable at 40 percent or more and there is a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating on an extraschedular basis may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by non-service connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran 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 or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Upon remand in September 2012, the Veteran was provided with two VA examinations in October 2012 to evaluate the effect his service-connected disabilities have on his ability to obtain and maintain employment. During the audiology examination, the examiner stated that the Veteran's bilateral tinnitus was as likely as not related to service. In March 2013, the Veteran's representative pointed this out in a brief, thus raising an informal claim for service connection for bilateral tinnitus. If service connection were to be granted for tinnitus, the assigned rating may result in a combined disability rating that meets the schedular TDIU criteria. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26 (2012). Therefore, the Board finds that the claim for service connection for tinnitus is inextricably intertwined with entitlement to TDIU, since TDIU depends on what conditions are service connected and the ratings assigned. See Shields v. Brown, 8 Vet. App.346, 350-51 (1995); see also Flash v. Brown, 8Vet. App.332, 338-40 (1995). As such, the issue of TDIU must be remanded to allow for adjudication the remaining service connection issue. In addition, the Board finds that a new VA examination must be provided once the issue of service connection for tinnitus is adjudicated. As noted in its September 2012 remand, the Court has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a) (West 2002); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). The Board's remand asked for an opinion regarding the impact the service-connected disabilities "alone" have on the Veteran's employability. However, the Board notes that the designation of "alone" was meant to exclude non-service connected disabilities from consideration, rather than request consideration of the service-connected disabilities individually. Regulations require that VA consider the combined effects the service-connected disabilities have on employment. 38 C.F.R. § 4.16. Neither the VA examination focusing on hearing loss nor the one focusing on the orthopedic, respiratory, and neurologic disabilities contained an opinion clearly considering the combination of all service-connected disabilities. Therefore, while the Board appreciates the opinions regarding each individual disability, an opinion regarding the combined effects on employability must be obtained in order to properly adjudicate this claim. Moreover, the Board acknowledges that this case is complicated by the fact that the Veteran has dementia and may not be the best historian. Indeed, the examiner stated that the Veteran and his wife were not able to attribute the low back, neck, and knee disabilities to his unemployment, noted that the Veteran denied neck, back, or knee pain, and that he was not able to give much history on his sinusitis disability due to his dementia. The examiner concluded that the Veteran was unemployable but mostly due to his non-service connected diabetes mellitus and dementia and not due to his service-connected disabilities. However, the examiner did not explain this opinion in the context of the Veteran's education and employment experience, and, although the examiner indicated that the claim file had been reviewed, it does not appear that the evidence in the claims file, including treatment for the service-connected disabilities and evidence as to their severity, was taken into consideration. While the Veteran's non-service connected dementia may make it difficult to obtain information regarding the impact of his service-connected disabilities on employment, his medical history and records could provide more information and should be discussed. Therefore, as the record does not include a VA opinion by a qualified medical professional supported by an adequate rationale that sufficiently assesses what impact the Veteran's service-connected disabilities in combination have on his ability to obtain and maintain employment, a remand is necessary. The Board requests that this opportunity is taken to obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all outstanding VA treatment records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Adjudicate the issue of entitlement to service connection for tinnitus. 3. Then, schedule the Veteran for a VA examination to determine the combined impact that the Veteran's service-connected disabilities have on his ability to obtain and maintain gainful employment. The examiner should review the claims folder and note such review in the examination report. The examiner should also consider the Veteran's level of education and employment experience. The examiner should provide an opinion as to whether the service-connected disabilities, including lumbar and cervical spine arthritis, a bilateral knee disability, bilateral hearing loss, migraines, sinusitis, and, if service-connected, tinnitus, would together prevent the Veteran from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should provide a rationale for this opinion, which takes into account the evidence in the claims file and the Veteran's education and employment history. 4. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 5. If after the above development is completed TDIU cannot be granted, consider whether referral for an extraschedular TDIU is warranted. 6. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate 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 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 2002 & Supp. 2012). _________________________________________________ J. A. MARKEY 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).