Citation Nr: 1320771 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 12-03 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disability from January 1, 2008 to August 30, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 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 The Veteran contends that a grant of TDIU is warranted as he is unemployable due to a combination of all of his service-connected disabilities. The Veteran was awarded a 100 percent disability evaluation from September 21, 2007 to December 31, 2007 and from August 31, 2010. Therefore, entitlement to TDIU is at issue from January 1, 2008 to August 30, 2010. From January 1, 2008 to August 30, 2010, the Veteran was service-connected for ischemic heart disease at 30 percent, residuals of prostate cancer at 40 percent, left shoulder impingement with tendonitis/degenerative joint disease at 20 percent, right shoulder degenerative joint disease at 20 percent, lumbar spine degenerative joint disease at 10 percent, and noncompensable ratings for bilateral hearing loss, hemorrhoids, forehead lipoma, erectile dysfunction, and residual abdominal scars for a total combined disability rating of 80 percent. He therefore meets the minimum schedular criteria for a grant of a TDIU. See 38 C.F.R. § 4.16(a) (if there are two or more service-connected disabilities, one must be rated at 40 percent or more and the combined rating must be 70 percent or more). The Board notes that the Veteran has a number of other non-service connected disabilities including persistent atrial fibrillation, significant hand tremors and upper back, bilateral hip and bilateral knee conditions. See Veteran's Application for Increased Compensation Based on Unemployability, December 2010. The Veteran was provided VA examinations in February 2008 and May 2008 for his shoulders, spine, and prostate. In June 2011, the Veteran was given a VA examination to determine the current nature and severity of his service-connected residuals of prostate cancer. However, the Veteran has never received a general medical opinion determining if he is unemployable based on the combined impairment of all of his service-connected disabilities. As such, a new VA examination and opinion are necessary to determine whether entitlement to TDIU is warranted. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Additionally, in the Veteran's application for a TDIU, he listed dates of treatment from specific doctors but these records have not been obtained. Upon remand, it is necessary to request these treatment records. See 38 C.F.R. § 3.159(c)(1). The Veteran states that from September 2002 to November 2008, he worked 20 to 40 hours a week at a home improvement store as a plumbing associate. The record shows that employer was sent a request for employment information. In May 2011, The employer sent a letter to the RO, enclosing instructions on how to access the Veteran's employment history; however, no employment history was obtained and there is no indication in the file as to whether the RO followed the instructions provided by the employer. Upon remand, it is necessary to obtain the Veteran's employment history from that employer. See 38 C.F.R. § 3.159(c)(1). 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. The RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who treated the Veteran for service-connected disorders during the appeal period. After securing the necessary release(s), obtain the relevant medical records, including those identified in the Veteran's December 2010 Application for Increased Compensation Based on Unemployability. 2. With any necessary assistance from the Veteran, obtain all of his employment records from the home improvement store where is was formerly employed. Document all attempts to obtain this evidence, to include calling the telephone number and accessing the website provided in the May 2011 letter from the employer. If the RO is unable to obtain the requested information by following these steps, that fact MUST be documented in the Veteran's claims file. If the RO is unable to secure these records, it MUST notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 3. After completion of the foregoing, the Veteran should be afforded a VA examination to assess the combined impairment resulting from his service-connected disabilities, including ischemic heart disease, residuals of prostate cancer, left shoulder impingement with tendonitis/degenerative joint disease, right shoulder degenerative joint disease and lumbar spine degenerative joint disease. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Following the examination, the examiner is requested to provide an opinion describing the combined effect of the service-connected disorders on the Veteran's ability to engage in substantially gainful employment from January 1, 2008 to August 30, 2010. The opinion should include a statement as to whether it is as likely as not (50 percent or greater probability) that the Veteran was unable to secure or follow a substantially gainful occupation as a result of all of his service-connected disabilities from January 1, 2008 to August 30, 2010. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to any impairment caused by non-service-connected disabilities. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. A complete rationale should be given for all opinions and conclusions expressed. 4. Then, readjudicate the issue on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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 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).