Citation Nr: 1316465 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 06-35 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Mr. Robert V. Chisholm, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 2001 to December 2004. This matter returns to the Board of Veterans' Appeals (Board) from an August 2012 Order by the United States Court of Appeals for Veterans Claims (Court), which endorsed an August 2012 Joint Motion for Remand and vacated a March 2012 Board decision, which in pertinent part, denied entitlement to a TDIU, and remanded the matters for action complying with the Joint Motion for Remand. As a matter of background, this matter was initially before the Board on appeal from a June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO), which denied the claim. The Veteran perfected an appeal. In October 2011, the Veteran testified before the Board at a hearing held at the RO. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the hearing transcript has been associated with the claims folder. In pertinent part of the March 2012 decision, the Board denied the Veteran's claim for entitlement to a TDIU. The Veteran appealed the Board's denial to the Court giving raise to the current matter. The Board notes that since the August 2012 Court Order, the Veteran has submitted additional evidence with a waiver of original consideration by the RO. See 38 C.F.R. § 20.1304 (2012). 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 In light of points raised in the joint motion, and the Board's review of the claims file, the Board finds that further VA action on the claim on appeal is warranted. In the joint motion, the parties agreed that VA had failed to assist the Veteran by not providing her with a VA examination that considered the cumulative impact of all of her service-connected disabilities on her ability to maintain substantially gainful employment. It was noted that Veteran was previously provided with five VA examinations dated in 2009 and 2010 in which her service-connected disabilities were evaluated, but none of the examiners in those reports considered the combined effect of all of the Veteran's service-connected disabilities on her employability. The parties also agreed that the Board failed to provide adequate reason and basis for not considering whether the evidence demonstrated that the Veteran had substantially gainful employment prior to February 2009. The parties observed that the evidence of record appeared to demonstrate that Veteran was only employed part-time from January 2005 to February 2009, despite her responds that she was last employed fulltime in February 2009. The Board notes that the Veteran meets the schedular requirements for a TDIU for the entire period under appeal. See 38 C.F.R. § 4.16(a) (2012). The evidence of record appears to demonstrate that the Veteran has been variously employed from 2004 to 2011 and she is currently enrolled in both on-line and in-person college courses. Nevertheless, the Board must determine whether the Veteran's service-connected disabilities preclude her from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran asserts that she is unable to engage in substantially gainful employment and that any employment she obtains is only marginal. In support of her assertions, the Veteran has submitted a February 2013 Vocational Assessment by a private vocation rehabilitation specialist. The private specialist concluded that although the Veteran will continue to seek part-time employment, it is likely that the Veteran will not be able to maintain substantially gainful employment because of the cumulative impact of her service connected disabilities. In light of the points raised by the parties to the joint motion, and the additional evidence of record, on remand, the AOJ should obtain a Social and Industrial Survey for the purpose of determining whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The remand will also allow for original consideration of the additional evidence that has been added to the claims file since the August 2012 Court Order. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should seek the Veteran's assistance in obtaining any outstanding pertinent medical treatment records. If any identified records cannot be obtained, a memorandum should be included in the file explaining the procedures undertaken to attempt to find the records and indicating why such attempts were not fully successful. 2. Schedule the Veteran for a Social and Industrial Survey for the purpose of ascertaining the impact of her service-connected disabilities on her employability. The claims folder must be made available to and reviewed by the designated examiner. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities (adjustment disorder with mixed anxiety, insomnia and depressed mood; allergic rhinitis and sinusitis; degenerative arthritis of thoracolumbar spine; right shoulder impingement; sciatic nerve impingement of the right lower extremity; gastro esophageal reflux disease; recurrent tibial myositis; plantar fasciitis; right big toenail removal; left big toenail removal; eczema; and tension headaches) have on her employability. The examiner should opine as to whether the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation for which she would otherwise be qualified. Consideration should be given to the Veteran's level of education, special training, and previous work experience but not to his nonservice-connected disabilities and advancing age in arriving at a conclusion. The examiner should comment on whether the Veteran is only able to engage in marginal employment as opposed to substantially gainful employment. In doing so, the examiner is asked to comment on the findings contained in the February 2013 private vocational assessment. If the Veteran's service-connected disabilities do not render her unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given her current skill set and educational background. All findings and conclusions should be supported by a rationale. 3. Then readjudicate this TDIU claim in light of the additional evidence, including the February 2012 private vocational assessment and findings from any Social and Industrial Survey and examination, with consideration of whether the Veteran's service-connected disabilities only allow her marginal employment. If this claim is not granted to the Veteran's satisfaction, send her and her representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ C. TRUEBA 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).