Citation Nr: 1314683 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-33 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran presented testimony at a June 2007 RO formal hearing and a March 2009 video conference Board hearing before the undersigned Veterans Law Judge. Transcripts of those proceedings have been associated with the Veteran's claims file. For the reasons discussed below, the appeal is again REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the Veteran if further action is required. REMAND In its 2009 remand, the Board requested that a VA opinion be obtained to address whether the Veteran's service-connected disabilities, either separately or in the aggregate, rendered the Veteran unemployable. However, the VA examination and medical opinion provided to the Veteran only addressed whether the Veteran's service-connected posttraumatic stress disorder (PTSD) rendered him unemployable, with no opinion offered as to the effect of the Veteran's service-connected skin disability or cervical spine disability, on the Veteran's employability. Accordingly, the appeal was again remanded in 2011 so that an additional VA opinion as to unemployability could be obtained, taking into account the Veteran's PTSD, skin disability, cervical spine disability, and newly service-connected lung cancer residuals. VA examinations using the Disability Benefits Questionnaire format were conducted in September 2011 and October 2011 with respect to the Veteran's PTSD, cervical spine disability, skin disability, and lung cancer residuals. Review of the record, however, reveals that the appeal is still not ready for appellate review. First, while each of the recent examiners provided an opinion as to whether each individual disability "impact[ed] his ability to work," the standard for determining whether TDIU is warranted is not the vague question of whether the disability impacts a veteran's ability to work. The Rating Schedule for Disabilities itself is intended to compensate for the level of occupational impairment resulting from the specific level of disability. 38 C.F.R. § 4.1 (2012). TDIU, rather, concerns whether one or more service-connected disabilities preclude a veteran from securing and maintaining substantially gainful employment. None of the examiners made a determination using that standard. Second, none of the opinions considered the effect of the Veteran's disabilities in the aggregate, as specifically directed by the remand. Finally, service connection for ischemic heart disease was granted in a May 2012 rating decision (sent to the Veteran in June 2012), but the RO did not consequently seek an opinion as to the Veteran's employability in light of this newly service-connected disability alone, or of all of his service-connected disabilities in the aggregate. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to a VA examiner or vocational specialist. Ask that the claims file, both paper and electronic, be reviewed. Thereafter, the examiner or vocational specialist 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 one or more service-connected disabilities (PTSD, skin disability, cervical spine disability, residuals of lung cancer, and/or ischemic heart disease), either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation during the appeal period. The rationale for all opinions expressed should be provided. In offering the opinion, it should be recognized that marginal employment shall not be considered substantially gainful employment. 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. 38 C.F.R. § 4.16(a). 2. Readjudicate the Veteran's claim. If any action remains adverse to the Veteran, provide him and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Then, return the appeal to the Board. 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. 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 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).