Citation Nr: 1322765	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  12-31 363	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


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


WITNESSES AT HEARING ON APPEAL

Veteran and a friend


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1949 to November 1959.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a       January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.  The Veteran testified at a hearing before the undersigned Board member in June 2013.  A transcript of that hearing has been associated with the record.

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 has also appealed the denial of TDIU.  After the most recent VA examinations and opinions regarding the effect of the Veteran's service-connected disabilities on his ability to maintain gainful employment, the Veteran was service connected for right arm strain with a 10 percent rating effective January 3, 2011.  The Board notes that this disability was not considered in the opinions relied upon regarding the Veteran's functional impairment.

Additionally, the Board notes that the VA examiner's addressed whether the Veteran's physical disabilities, his hearing loss disability, and his psychiatric disability would affect his ability to maintain gainful employment separately, but did not consider whether, when combined, the total disability might cause individual unemployability.  

In light of the above, remand is necessary.  Thus, the Board finds that a new VA opinion or examination is necessary regarding his current status to include obtaining an opinion as to whether his combined service connected disabilities, render the Veteran unemployable.  

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.  Provide the Veteran with appropriate VCAA notice regarding entitlement to TDIU.  This letter should advise the Veteran of the evidence necessary to substantiate his claim, specifically a claim of TDIU, as well as what evidence he is to provide and what evidence VA will attempt to obtain in accordance with Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

2.  Obtain and associate with the claims file any outstanding VA treatment records dated after December 2009.  All attempts to obtain these records should be documented in the claims file.  

3.  Schedule the Veteran for a VA evaluation for the purpose of ascertaining whether the combined impact of the Veteran's service-connected disabilities render the Veteran unable to obtain or maintain gainful employment, consistent with his employment history, educational and vocational attainment, and without regard to his age or nonservice connected disabilities.  The Veteran's service connected disabilities are: 

   residuals of cold injury with degenerative joint disease  
   of the left foot, 
   
   residuals of cold injury with degenerative joint disease
    of the right foot, 
   chronic adjustment disorder, 
   residuals of shell fragment wound of the right upper 
   arm, 
   tinnitus,
   right arm strain, 
   malaria, 
   bilateral hearing loss.  

The claims file should be provided to the evaluator, who should provide the rationale for the conclusion reached. 

4.  After the above has been completed to the extent possible, readjudicate the appeal.  If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide an appropriate period to respond.

The Veteran 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 E. KILCOYNE
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).