Citation Nr: 1325817 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-14 986A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to June 22, 2011. REPRESENTATION Veteran represented by: James Brakewood, Agent ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied a TDIU. In an October 2011 rating decision, the RO increased the Veteran's PTSD rating to 100 percent, effective June 22, 2011. The Board notes that a TDIU rating contemplates that the schedular rating is less than total. 38 C.F.R. § 4.16(a). Because VA determined that the Veteran's combined rating for his service-connected disabilities is 100 percent beginning on June 22, 2011, the claim for a TDIU during that timeframe is rendered moot. Prior to that time, however, his combined rating was 80 percent. As such, the TDIU claim is still active for the period before June 22, 2011, as identified on the cover page of this decision. In finding the claim of entitlement to a TDIU to be moot on and after June 22, 2011, the Board has considered the case of Bradley v. Peake, 22 Vet. App. 280 (2008). According to Bradley, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU rating even where a 100 percent schedular rating is already in effect. However, the Board finds that this case is distinguishable from Bradley in that the Veteran has already been granted SMC under 38 U.S.C.A. § 1114(s). Therefore, the concerns raised in Bradley are not present here and the claim for a TDIU is moot as of June 22, 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Upon preliminary review of the evidence of record, the Board finds that further development is necessary regarding the Veteran's TDIU claim prior to June 22, 2011. In August 2009, the Veteran filed for vocational rehabilitation. It does not appear that any vocational rehabilitation folder and/or education folder has been associated with the claims file. The Board finds that upon remand, such records, if any, should be obtained and associated with the claims file. The Veteran was afforded a General Medical Examination in December 2009 during which the examiner found that the Veteran's service-connected malaria residuals, prostate cancer residuals, and bilateral knee osteoarthritis did not render him unemployable. Of note, the Veteran is not in receipt of service connection benefits for a bilateral knee disability. The Veteran was afforded a separate VA psychiatric examination that same month, during which the examiner opined that the Veteran's service-connected posttraumatic stress disorder (PTSD) did not preclude him from all gainful employment. There was no opinion provided with respect to all service-connected disabilities. Prior to June 22, 2011, the Veteran's service-connected disabilities included PTSD (70 percent); prostate cancer residuals (40 percent); malaria residuals (noncompensable); and erectile dysfunction (noncompensable). His combined rating prior to June 22, 2011, was 80 percent. The Board finds the December 2009 VA examinations are inadequate for purposes of determining whether the Veteran's service-connected disabilities rendered him unemployable prior to June 22, 2011, inasmuch as the opinions provided were not based on the Veteran's whole service-connected disability picture. Indeed, each of the Veteran's service-connected disabilities were found to not preclude substantially gainful employment, but there is no opinion looking at all of his service-connected disabilities in combination and their impact on his unemployability prior to June 22, 2011. As such, the claim should be remanded for another opinion with respect to the Veteran's employability based on the cumulative effect of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should associate the Veteran's vocational rehabilitation and education folder, if any, with the claims folder. 2. Then, the RO or the AMC should forward the Veteran's claims file, and any pertinent evidence in Virtual VA, to an examiner with the sufficient expertise to ascertain whether he was unemployable due to the cumulative effect of his service-connected disabilities prior to June 22, 2011. The examiner is asked to provide an opinion as to whether the Veteran's service-connected disabilities were sufficient by themselves, prior to June 22, 2011, to render the Veteran unable to obtain or maintain any form of substantially gainful employment consistent with his education and employment background. The supporting rationale for all opinions expressed must be provided. It is at the discretion of the examiner as to whether the Veteran's should be reexamined. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. After all of the development above has been completed, readjudicate the Veteran's claim. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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 LANE 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).