Citation Nr: 1316246 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-39 578 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel REMAND The Veteran served on active duty from August 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision, by the Columbia, South Carolina, Regional Office (RO), which denied the Veteran's claim of entitlement to a TDIU. (The Board notes that, in his September 2009 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ) at the RO (Travel Board Hearing). In March 2010, he amended the request and indicated that he desired a videoconference hearing. In May 2010, the RO sent the Veteran notice that a videoconference hearing was scheduled for June 16, 2010. He failed to appear at the hearing. Pursuant to 38 C.F.R. § 20.702(d) (2012), the Veteran's case will be processed as though the request for hearing had been withdrawn.) The Veteran contends that he is unable to obtain and retain employment because of his service-connected lumbar disc disease, major depressive disorder, and bilateral pes planus. The Veteran maintains that the severity of his service-connected disabilities and the fact that he meets the schedular requirements for TDIU warrants a grant of the claimed benefit. After review of the record, the Board finds that additional development is needed prior to further consideration of the Veteran's claim. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. The record reflects that the Veteran is currently service connected for: lumbosacral strain with historical evidence of spurring at T12-L1 and degenerative disc disease, rated as 60 percent disabling; major depressive disorder, rated as 50 percent disabling; and bilateral pes planus, with bilateral metatarsalgia, history of chip fracture, left cuboid bone, rated as 30 percent disabling. In combination, his service-connected disabilities are rated as 90 percent disabling. Therefore, the Veteran meets the minimum requirements for eligibility for an award of TDIU. 38 C.F.R. § 4.16 (2012). The salient question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. § 4.16(a). Consequently, the Board must determine whether the Veteran's service-connected disabilities combine to preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2012). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The Veteran was afforded a VA examination in December 2008 for evaluation of his lumbar spine disorder. At that time, he reported back pain on a daily basis; he noted that the pain radiates to both legs below the knee. It was noted that the Veteran used a cane. The Veteran indicated that he last worked in 2005 as a cook, but he stopped that work because of back problems. He stated that he had limitation of standing. On examination, it was noted that all motions of the low back appeared painful and the Veteran had to brace himself with his cane to carry out the maneuvers. He was also afforded an evaluation of the bilateral pes planus in December 2008. It was noted that, in his work, the Veteran experienced limitation standing because of his feet. Following a mental status examination, the examiner stated that the Veteran's ability to maintain employment and perform job duties in a reliable, flexible and efficient manner was moderately to considerably impaired. The Board notes that the December 2008 VA mental examination appeared to have only considered the Veteran's major depressive disorder, while the spine examination only considered the Veteran's low back disorder and bilateral pes planus. However, the United States Court of Appeals for Veterans Claims (Court) has held that in the case of a claim for a total rating based on individual unemployability, the duty to assist requires VA to obtain an examination that includes an opinion on what effect all the Veteran's service-connected disabilities, taken together, have on his ability to work. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). As such, the Board believes that the Veteran should be afforded a VA examination to obtain an opinion as to whether the combination of his service-connected disabilities makes him unemployable. On remand, the agency of original jurisdiction (AOJ) should provide the Veteran with an examination to determine whether he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. §§ 3.159(c) (4), 4.16(a). The Board requests that the examiner distinguish, if possible, the impact of the Veteran's service-connected disabilities on his capacity to secure and follow a substantially gainful occupation from the impact of any non-service-connected disabilities. Specifically, if the examiner finds that the Veteran is unable to secure and follow a substantially gainful occupation, the VA examiner should determine whether such resulted solely from the Veteran's service-connected disabilities (i.e., lumbar degenerative disc disease, major depressive disorder, and bilateral pes planus), or whether it resulted only in combination with non-service-connected disabilities. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the AOJ for the following actions: 1. The AOJ should contact the Veteran and request that he provide up-to-date information concerning his employment history. Specifically, the Veteran should submit any other evidence, such as employment records or statements from employers and physicians, supporting his contention that he is unemployable due to his service-connected low back disorder, major depressive disorder and bilateral pes planus. 2. The Veteran should be afforded a VA compensation examination to determine the impact of all his service-connected disabilities on his employability. The claims folder should be made available to the examiner prior to the examination. All pertinent symptomatology and findings must be reported in detail. Based on the review of the claims file, the examiner must provide an opinion as to the combined effect of all the Veteran's service-connected disabilities on his ability to obtain or maintain substantially gainful employment. The examiner should consider the Veteran's employment background and education. A complete rationale should be given for all opinions and conclusions expressed. 3. The AOJ must ensure that all requested actions have been accomplished. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, in light of all of the evidence received, the AOJ should readjudicate the issue of entitlement to TDIU. If the determination is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC), which includes analysis of additional evidence submitted since issuance of the September 2009 statement of the case. This document should include detailed reasons and bases for the decision reached. The Veteran and his representative should be provided an opportunity to respond before the case is returned 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 case 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).