Citation Nr: 1322452 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-02 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to June 1977, from January 1987 to May 1987, and from September 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. 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 asserts that he is unemployable due to his service-connected disabilities. Service connection has been granted for chronic fatigue syndrome, rated as 60 percent disabling; for an adjustment disorder, rated as 50 percent disabling; and for alopecia totalis, rated as 10 percent disabling. His combined service-connected disability evaluation is 80 percent. The Board is unable to make a determination on the current evidence of record. The Board notes that VA treatment records dated from May 2008 to October 2009 reveal that the Veteran sometimes worked as a substitute teacher and that he was attending community college, hoping to pursue a physician's assistant degree. The most recent VA examination of the Veteran was performed in March 2009 and the most recent VA treatment records are dated in December 2009. The March 2009 VA examiner noted that the Veteran had two Masters degrees, including an MBA. The diagnoses included major depression and moderate to severe anxiety disorder. The Veteran's global assessment of functioning (GAF) was 48. The VA examiner stated that the Veteran's psychiatric disability and his chronic fatigue syndrome had a negative impact on the Veteran's ability to sustain full-time employment. The examiner opined that the Veteran experienced profound difficulty remaining employed due to ongoing sleep disruption, chronic fatigue, and acute anxiety. The examiner noted that the Veteran presently worked as a substitute teacher on an as needed basis to supplement his income. The VA examiner opined that based on the Veteran's age and history of job loss due to psychological factors, it was more likely than not that he would be unable to sustain full-time employment. Although the VA examiner indicated that the Veteran was unemployable, it appears that his opinion was partly based on the Veteran's non service-connected obstructive sleep apnea and on the Veteran's age. Age and nonservice-connected disabilities may not be taken into consideration in determining a veteran's eligibility for TDIU. See 38 C.F.R. § 3.341. Given that the March 2009 VA opinion indicating that the Veteran was unemployable took into consideration factors which must be excluded when determining eligibility to TDIU, the Board finds that a new medical opinion, based on the correct factors, and on the more recent medical evidence, must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Veteran's VA treatment records dated from December 3, 2009 to present. 2. When the above action has been accomplished, the Veteran should be scheduled for an examination pertaining to his TDIU claim. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to obtain or retain substantially gainful employment due to his service-connected disabilities, taking into consideration his previous work experience (airline customer service representative and substitute teacher) and education (two Masters degrees) but not his age and nonservice-connected disabilities. The Veteran is service-connected for chronic fatigue syndrome, an adjustment disorder, and for alopecia totalis. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examiner should provide a complete rationale for all conclusions reached. 3. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto 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 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 A. PAPPAS 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).