Citation Nr: 1325914 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-18 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from March 1963 to March 1968 and from November 1968 to January 1977. This matter comes to the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO). The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND Additional development is required before the issue of entitlement to a total disability rating based on individual unemployability (TDIU) can be adjudicated. Specifically, an opinion is necessary, for the reasons discussed below. Further, VA must obtain any outstanding VA outpatient treatment records. Generally, VA will award when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). TDIU benefits are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In his March 2009 VA Form 21-8940, the Veteran reported that he stopped working as an auto mechanic for the United States Postal Service in October 2009. In subsequent statements, he further asserted that he stopped working due to his service-connected disabilities. Moreover, in a November 2010 statement, he reported that when he was working, he had to take "hundreds" of hours of sick leave. In addition, a September 2010 VA audiological examination report includes the examiner's comment, that the Veteran's hearing loss had significant effects on his occupation. Further, a September 2010 VA general examination report includes the examiner's comment, that the Veteran "is not at least as likely as not able to do either physical or sedentary work." In providing this opinion, the examiner noted the Veteran's severe hearing loss and stiffness of his body, as well as his lack of education and mental confusion. In this regard, service connection is in effect for posttraumatic stress disorder, rated as 50 percent disabling; bilateral hearing loss, rated as 20 percent disabling; tinnitus, rated as ten percent disabling; osteophyte formation of the left elbow, rated as 20 percent disabling; osteophyte formation of the right knee, rated as ten percent disabling; degenerative joint disease of the left shoulder, rated as ten percent disabling; and left ankle medial malleolus fracture, rated as ten percent disabling. See Id. Thus, on remand, a VA opinion that addresses the effect of all of the Veteran's service-connected disabilities on his ability to work, without consideration of any impairment caused by nonservice-connected disabilities, is necessary. Friscia v. Brown, 7 Vet. App. 294 (1994). In addition, the Veteran appears to receive ongoing treatment for his service-connected disabilities at the VA Medical Center located in Kansas City, Kansas. The record contains VA outpatient treatment records to November 2010; thus, VA must obtain any VA outpatient treatment records from November 2010 to the present, and associate them with the claims file. See 38 C.F.R. § 3.159 (c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for TDIU. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must attempt to obtain all VA treatment records from the VA Medical Center located in Kansas City, Kansas, from November 2010 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Upon completion of the above development, a VA examiner must provide an opinion on the effects of the Veteran's service-connected disorders on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims files and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, namely, posttraumatic stress disorder; bilateral hearing loss; tinnitus; osteophyte formation of the left elbow; osteophyte formation of the right knee; degenerative joint disease of the left shoulder; and left ankle medial malleolus fracture precluded him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. In offering such opinion, the examiner must address the September 2010 VA audiological examination report which includes the examiner's comment, that the Veteran's hearing loss had significant effects on his occupation. The examiner must also address the September 2010 VA general examination report which includes the examiner's comment, that the Veteran "is not at least as likely as not able to do either physical or sedentary work," for reasons such as severe hearing loss, stiffness of the Veteran's body, lack of education, and mental confusion. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, 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). _________________________________________________ JOY A. MCDONALD 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).