Citation Nr: 1324966 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 06-25 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active military service from August 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A Board decision in September 2011 awarded an increased initial rating of 70 percent for the Veteran's posttraumatic stress disorder (PTSD). The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) insofar as the Board concluded that the issue of entitlement to a TDIU was not raised. The Veteran did not appeal the schedular rating assigned to his PTSD. In an Order dated in August 2012, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to partially vacate the Board's decision as to whether the issue of entitlement to a TDIU was raised by the record and remand the case for readjudication in accordance with the JMR. In March 2013, the Board remanded the claim to afford the Veteran a hearing. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2013. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Additional development is necessary prior to further disposition of the claim. The Veteran contends that his service-connected PTSD, rated at 70 percent disabling, prevents him from obtaining or maintaining substantially gainful employment. He contends that while he is self-employed as a furniture upholsterer, because of the economy and his PTSD symptoms, including irritability, sleep impairment, trouble getting along with others, and side effects from medications, he is unable to make a living. The Veteran also works as a minister, testifying that he receives an income of $22,000 a year from that employment. However, after his sermons, he is often unable to greet the congregation. Lastly, the Veteran makes a few hundred dollars or less each month recycling cardboard. He has submitted records from the Social Security Administration showing that he made only a few thousand dollars in 2012. A review of the claims file reflects that in February 2007, the Veteran submitted a letter from his chiropractor that his cervical spine disability and sciatica caused significant physical limitations with frequent severe exacerbations, which impaired his ability to perform work that he previously enjoyed. In August 2006, the Veteran's private physician stated that the Veteran had major difficulty due to his PTSD, hypertension, depression, and dysuria and insomnia related to his neck and back pain. He had significant depression due to his Vietnam experiences and took psychiatric medication. He also had neuropathies in his hands and legs that made it difficult to stoop and bend. A June 2007 VA psychiatric examination reflects that the Veteran was able to sleep only two to three hours per night. He suffered from nightmares and flashbacks, as well as anxiety and irritability due to his PTSD. He had previously left a job due to problems with his supervisor. He was currently working for himself and worked as a minister. The examiner concluded that the Veteran was experiencing a mild to moderate level of impairment in social and occupational functioning. In March 2008, the Veteran's group mental health counselor noted that the Veteran had quit several good jobs because of irritating behaviors of his coworkers, so as not to experience an angry outburst. A June 2009 VA examination reflects the Veteran's reports that he was angry, could not sleep well, and had nightmares. He reported that he had managed a McDonald's for eight years but left due to difficulty with his coworkers. He then started his own upholstery business and felt better when working by himself. Following mental status examination, the examiner determined that the Veteran was experiencing a moderate to severe degree of impairment in occupation functioning. A November 2009 private psychological examination states that the Veteran had to work for himself because he could not get along with supervisors or fellow workers. He could not do things as he used to. He had recently lost two jobs because he couldn't keep the appointments with his customers. He would become very upset with customers who did not pay him on time. He had trouble with communication with others. The psychiatrist believed that the Veteran suffered from total occupational and social impairment. All the Veteran could do was sit by himself on one knee and try to upholster furniture. He was slow and a perfectionist and could not complete jobs quickly enough to make a living. He was able to work as a minister, however, once he finished his sermon, he would disappear and have little contact with the parishioners. A November 2009 VA treatment record reflects the Veteran's report that he was working as an upholsterer, but that the bending caused strain on his back and neck. He was not sure how long he would be able to continue working in his upholstery business. He was doing a lot of counseling of couples as a minister, but could not apply the teachings to his own life. His increased PTSD symptoms required more medication which caused sedation and side effects. A June 2011 VA examination reflects the Veteran's report that he had owned his own business for ten years. Business was down due to the economy. He had missed about 20 days in the past year due to his PTSD. He was less productive because of concentration problems and low energy. Working alone helped his irritability. Following mental status examination, the examiner concluded that the Veteran's ability to maintain employment and perform job duties was moderately to considerably impaired. A May 2013 private employability evaluation found moderate to marked limitations in the Veteran's ability to function in an employment setting. However, that evaluation is missing pages and is thus incomplete. In light of the above, the Board finds that a VA examination should be obtained to determine whether the Veteran's service-connected PTSD, alone and when not considering his other nonservice-connected disabilities, prevents him from obtaining and maintaining substantially gainful employment. The evidence demonstrates that the Veteran has worked throughout the appeal period, however, the VA has yet to obtain an opinion as to whether he meets the requirements for a TDIU based on the severity of his PTSD. On remand, outstanding VA treatment records should be obtained, as well as the full May 2013 private examination report. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran notice of the evidence necessary to substantiate a claim for TDIU. 2. Request that the Veteran identify any outstanding treatment records relevant to his claim for a TDIU not already obtained, to include a complete copy of the May 2013 private employability evaluation. After securing any necessary authorization from him, obtain all identified treatment records, as well as any available VA treatment records dated during the appeal period not already obtained. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records. 3. Schedule the Veteran for an examination to ascertain the impact of his service-connected disability on his unemployability. The claims folder should be reviewed. The examiner should reconcile the opinion reached with all other opinions of record. The rationale for all opinions should be provided. The examiner must evaluate and discuss the effect of the Veteran's service-connected disability, PTSD, on his employability. The examiner should opine as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's service-connected PTSD, without consideration of his non-service-connected disabilities including his spine disabilities, renders him unable to secure or follow a substantially gainful occupation. The examiner should take into account such facts as a) the Veteran's employment as a minister and his statements that he had trouble greeting the congregation following his sermons but also that he counsels couples in his church, and b) the Veteran's self-employment as an upholsterer that is affected by his PTSD symptoms such as his sleep impairment, concentration problems, and irritability and angry outbursts, but that is also affected by the economy and other factors. The rationale for any opinion must be provided 4. 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 of record. 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. The appellant has the right to submit additional evidence and argument on the matter or matters 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).