Citation Nr: 1322546 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 05-41 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to May 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. An April 2008 rating decision, in pertinent part, granted service connection for an anxiety disorder, assigning a 30 percent evaluation effective March 18, 2004. The Veteran testified before the undersigned Veterans Law Judge at a video-conference hearing at the RO in San Antonio, Texas, in January 2010. A transcript of the hearing is of record. In a January 2012 rating decision, the RO granted the Veteran a 50 percent rating for his service connected anxiety disorder, effective December 20, 2011. The Board, in a decision dated in August 2012, noted that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). After rendering a decision on the Veteran's other issues on appeal, the Board remanded the TDIU issue for additional development. 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 A TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's service connected disabilities are anxiety disorder, rated as 50 percent disabling; sinusitis, rated as 10 percent disabling; and allergic rhinitis, rated as zero percent disabling. His combined service connected disability rating is 60 percent. In exceptional circumstances, where the Veteran does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a), a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). VA treatment records dated throughout the pendency of the Veteran's claim indicate that he is unemployed. In September 1991 the Veteran was involved in a motor vehicle accident while working for the Postal Service. He injured his lower back at that time and subsequently filed a Worker's Compensation claim. A December 1992 physician's statement completed in conjunction with the Worker's Compensation claim indicated that the Veteran had posttraumatic major depressive disorder from the motor vehicle accident and that this condition left him totally disabled for any occupation. A July 2004 VA psychiatric treatment record noted that the Veteran reported that he had been in a motor vehicle accident in 1991 that left him "unemployable due to chronic back pain." A VA examination in August 2004 noted that the Veteran "was involved in a motor vehicle accident while working at the Post Office. He became disabled and is now 100 percent disabled and unemployable because of degenerative disc problems that cause him severe pain and the need to be medicated, basically 24 hours a day." On a VA Form 21-8940, Application for Increased Compensation Based on Unemployablitiy, completed by the Veteran in November 2005, he reported that he was unable to secure or follow a substantially gainful occupation due to "back, neck, PTSD, emotional/anxiety/depression, et al." He reported work experience as a sales trainee, restaurant owner, sales representative, and manager, and that he had last been employed in 1991 as a mail carrier. He reported having two years of college education and training in sales and as a chef. On a VA Form 21-527, Income-Net Worth and Employment Statement completed in May 2006, the Veteran reported that he had last been employed with the Postal Service in 1992. He reported that he had two years of college and that he was unable to work due to anxiety, depression, cervical condition, middle back disability, and posttraumatic stress disorder. During his January 2010 Board hearing the Veteran testified that one of the reasons he could not keep jobs was that he used to get angry with his bosses and thought they were coming after him. The Veteran's ex-wife submitted a written statement indicating that he sleeps 2-4 hours a night, is highly agitated, and cannot handle stress, and for these reasons cannot be employed. A March 2007 VA treatment record noted that the Veteran reported he cannot work due to pain, had an inability to focus, and feeling overwhelmed with work. He reported he had a problems concentrating and frequently forgets or loses things. It was noted that the Veteran was unemployed, lived in a VA group home, and had financial problems. On VA examination in March 2008, the examiner noted that the Veteran's problems working appeared to be in many ways primarily orthopedic and motivational. An August 2009 VA treatment record noted that the Veteran was introduced to a new clinician who will be his individual therapist and that he was confused with how to proceed in his life. A September 2009 addendum opinion from the psychologist who authored the August 2009 VA treatment record noted that the Veteran has been diagnosed with schizophrenia, anxiety disorder, bipolar disorder, and depression in the past. He had also been diagnosed with PTSD. He had panic attacks and sleep apnea. His PTSD was related to his wife's rape during active duty and having to face her rapist without being able to act on his anger. His PTSD has interfered with his ability to work, have relationships, and the activities of daily life. A December 2011 VA examiner reported that the Veteran's diagnosed anxiety disorder included clinically found symptoms of depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that the Veteran's anxiety caused occupational and social impairment with reduced reliability and productivity. A diagnosis of anxiety disorder NOS, and a GAF score of 55, were given. The examiner did not make a finding as to whether the psychiatric disability rendered the Veteran unemployable. A VA general medical examination was conducted in November 2012. The Veteran reported that after service he had worked as a chef and as a salesman. He reported that he last worked for the Post Office from 1983 to 1992. He noted that he had been in a motor vehicle accident while working for the Post Office and had become disabled and not worked since. The Veteran reported that it would be difficult for him to concentrate when he has sinus infections and it would be annoying for his coworkers to hear him sneezing, coughing, and clearing his throat. The examiner stated that the Veteran did not have functional impairment related to his sinusitis or allergic rhinitis that impaired either physical or sedentary employment. A VA psychiatric examination was conducted in November 2012. The examiner noted the Veteran's service connected psychiatric disability resulted in depressed mood, anxiety, and chronic sleep impairment. The Veteran reported that he felt his symptoms were getting worse and that he could not work because he "cannot get tasks done and is forgetful." The Veteran reported that he tried to enroll in Vocational Rehabilitation but that he was anxious and sweaty so he could not come. The examiner stated that the Veteran's current mental diagnoses should not hinder his ability to be employed. "He is capable of employment from psychiatric standpoint even though he insists he cannot work. While Veteran states he is having more psychiatric symptoms, there is no evidence that I can determine that indicates his condition has worsened." None of the VA examination reports on file adequately address the question of whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either alone or in the aggregate, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). The Board finds that pursuant to VA's duty to assist VA must obtain a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities separately or in combination render him unable to secure or follow a substantially gainful occupation. Soliciting such an opinion is necessary to adjudicate this claim. See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Records dated in February and March 2006 from the Social Security Administration and other evidence of record indicates that the Veteran has received disability Social Security Income (SSI) or Social Security Disability benefits (SSDI). Complete records of any SSA disability determination and the records considered therein are not of record and must be obtained. Accordingly, the case is REMANDED for the following action: 1. Request copies of any determinations or decisions, as well as the medical records associated with the Veteran's SSA disability benefits. 2. After completion of the above development, schedule the Veteran for a VA examination, to be conducted, if possible, by a vocational specialist, to determine entitlement to TDIU. The examiner must 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 his service-connected disabilities, either alone or in the aggregate, have rendered him unable to secure or follow a substantially gainful occupation. In offering this impression, the examiner must take into consideration the Veteran's level of education, training and previous work experience. For this purpose, notify the examiner that the Veteran's service-connected disabilities currently consist of (1) anxiety disorder; (2) recurrent sinusitis; and (3) allergic rhinitis. The claims folder, and any newly associated evidence, must be made available to and reviewed by the examiner in conjunction with the examination report. The examiner is to conduct any appropriate tests and studies required. 3. Refer the Veteran's claim of entitlement to TDIU to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating. 38 C.F.R. §§ 4.16(b). 4. Then, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the RO must issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. 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). _________________________________________________ RONALD W. SCHOLZ 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).