Citation Nr: 1324895 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-04 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from November 1960 to May 1961, March 1963 to November 1965, and December 1965 and April 1972. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision issued in September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals an October 2011 rating decision that granted service connection for coronary artery disease, evaluated as 10 percent as of June 6, 2003, and 60 percent as of March 18, 2011, as well as the Veteran's representative's July 2013 Appellant's Brief. The Veteran submitted additional evidence in October 2012 consisting of a copy of the October 2011 rating decision awarding service connection for coronary artery disease. As he waived RO consideration of such evidence, the Board may properly consider it. 38 C.F.R. § 20.1304(c) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND After a careful review of the Veteran's claims file, the Board finds that a remand is warranted. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent scheduler evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. In exceptional circumstances, where the Veteran does not meet the percentage requirements, 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). In this case, the Veteran is service-connected for coronary artery disease (rated as 10 percent disabling effective June 6, 2003, and 60 percent disabling effective March 18, 2011), posttraumatic stress disorder (PTSD) (rated as 50 percent disabling effective July 11, 2001), bilateral hearing loss (rated as 20 percent disabling effective July 11, 2001), peripheral vascular disease of the left leg with venous insufficiency (rated as 10 percent disabling effective July 11, 2001; 40 percent disabling effective February 13, 2006; and 20 percent disabling effective December 1, 2009), tinnitus (rated as 10 percent disabling effective July 11, 2001), deviated nasal septum (rated as noncompensable effective September 7, 1976), and scalp laceration (rated as noncompensable effective September 7, 1976). The Veteran's combined evaluation is 80 percent effective February 13, 2006; 70 percent effective December 1, 2009; and 90 percent effective March 18, 2011. Thus, the Veteran meets the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a). The Veteran asserts that he currently cannot work because of his service-connected disabilities. According to his June 2008 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran worked as a press operator for a printing company from 2000 to December 31, 2007. He stated that he had to stop working due to his inability to stand for periods of time due to his legs and that his PTSD caused increased problems as he had to isolate himself more, became more withdrawn, and had emotional breakdowns. On the Veteran's June 2008 Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192), he stated that he began his employment on April 15, 2005, and worked until December 28, 2007, as a press operator. He stated that he had many extra breaks because of his inability to stand at the press for six to eight hours a day and he had extra time off when he became withdrawn, almost to the point of depression. Since the Veteran meets the threshold rating criteria under 38 C.F.R. § 4.16(a) a determination needs to be made as to whether the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. At a February 2006 VA examination, it was stated that the Veteran's left leg venous insufficiency had significant effects on his occupation due to weakness or fatigue and decreased strength of the lower extremity. His venous insufficiency decreased the time he could stand and operate the printing press. In this regard, he could stand for 45 to 60 minutes as long as he was wearing his stockings, but his left leg was always swollen. At the September 2008 VA examination, it was opined that the Veteran's venous insufficiency had minimal functional impairment and did not affect his employment. At the Veteran's September 2008 VA PTSD examination, the examiner noted that the Veteran could not stand for 8 to 10 hours and that the holiday season increased his PTSD memories. He opined that the Veteran was not unemployable due to his mental disorders, but, rather, he was unemployable as the main result of his medical problems. The examiner noted that, in the past, his PTSD added to the stress and difficulty in job functioning during certain times of the year. An example was the intense guilt and depression he had during Christmas. With respect to the Veteran's coronary artery disease, the October 2011 rating decision referenced a March 2011 VA examination pertaining to such service-connected disability; however, such is not of record. Therefore, it is unclear what impact such service-connected disability has on the Veteran's employability. Likewise, there is no opinion regarding the impact that the Veteran's other service-connected disabilities have on his employability. Furthermore, while the aforementioned VA examiners have opined on whether the Veteran's separate disabilities of peripheral vascular disease of the left leg with venous insufficiency and PTSD render him unemployable, an opinion regarding whether the Veteran's service-connected disabilities, in the aggregate (i.e., jointly), render him unable to secure or follow a substantially gainful occupation has not been obtained. Therefore, a remand for such opinion is necessary. Additionally, the Board notes that the October 2011 rating decision pertaining to the Veteran's coronary artery disease referenced additional medical records not contained in the paper or Virtual claims file. Specifically, such referenced VA treatment records dated from June 2001 to May 2010 from the Tampa, Florida, VA facility and from October 2009 through October 2011 from the Orlando, Florida, VA facility. Therefore, while on remand, the Veteran should be given be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his service-connected disabilities. Thereafter, all identified records, to include the March 2011 VA examination report pertaining to the Veteran's coronary artery disease as well as VA treatment records from the Tampa VA facility dated from June 2001 to the present and from the Orlando VA facility dated from September 2008 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his service-connected disabilities. After securing any necessary authorization from him, obtain all identified treatment records, to include the March 2011 VA examination report pertaining to the Veteran's coronary artery disease as well as VA treatment records from the Tampa VA facility dated from June 2001 to the present and from the Orlando VA facility dated from September 2008 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the claims file should be forwarded to an appropriate medical profession to offer an opinion as to whether the Veteran's service-connected disabilities render him unemployable. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the report that the claims file was reviewed. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the opinion. Following a review of the record, the examiner should render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities in the aggregate (i.e., jointly), 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. In this regard, the Veteran is service-connected for coronary artery disease, PTSD, bilateral hearing loss, peripheral vascular disease of the left leg with venous insufficiency, tinnitus, deviated nasal septum, and scalp laceration. All opinions offered should be accompanied by a rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).