Citation Nr: 1327229 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-09 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from March 1950 to May 1953. The present matter comes to the Board of Veterans' Appeals (Board) on appeal following a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2013, the Veteran testified before the undersigned acting Veterans Law Judge (VLJ) during a videoconference hearing. A transcript of that hearing is of 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 Veteran if further action is required. REMAND The Veteran is a recipient of the Combat Infantryman's Badge (CIB) secondary to his combat service during the Korean War. The Veteran's combined service-connected disability rating is 70 percent. He has a single service-connected disability, posttraumatic stress disorder (PTSD), rated as 50 percent disabling. As such, the Veteran meets the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) (2012). Besides PTSD, the Veteran's service-connected disabilities consist of bilateral hearing loss (evaluated as 20 percent disabling), tinnitus (evaluated as 10 percent disabling), and status post shrapnel wounds of the right leg, muscle group XII, with scar (evaluated as 10 percent disabling). A review of the Veteran's application for increased compensation based on unemployability (VA Form 21-8940) received in April 2010, reflects his report that PTSD prevented him from following a substantial gainful occupation. The application notes that the Veteran had a high school education up to the 10th grade, and that he had not received any additional education/training prior to becoming too disabled to work. The Veteran was awarded Social Security Administration (SSA) disability benefits. His records associated with the award are not available for review. The Veteran was notified of this fact in a September 2010 notice letter. Otherwise, the Veteran has reported that the primary medical basis for his SSA disability award was arthritis (to include the hands, back, and shoulders) and shortness of breath. At his hearing with the undersigned active VLJ, the Veteran testified that he had been a drywall finisher for 50 years and had been unable to perform the work due to arthritic pain. In a report of May 2010 QTC examination, the Veteran was noted to report that he was not working and had not worked in 20 years. Furthermore, that he had previously been self employed in drywall finishing, but retired secondary to arthritis and shortness of breath. The QTC examiner commented that the Veteran's unemployment, "is not due to the effects primarily of a mental condition." During his hearing with the undersigned acting VLJ, the Veteran testified that he did not know about PTSD when he was forced to medically retire, but that he now believes that PTSD played a role in his retirement. A review of the Veteran's VA treatment records reflects issues with, in particular, anger, isolation, startled response, depression and sadness, as well war-related nightmares and recollections. The Veteran has reported that these symptoms are constant, continuous and/or ongoing. The Board notes that entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). Age, however, may not be a factor in evaluating service-connected disability or unemployability. See 38 C.F.R. § 4.19 (2012). In the present case, the only medical opinion evidence pertinent to the Veteran's claim is that associated with the May 2010 QTC examination. The Board finds the evidence insufficient for purposes of determining whether the Veteran is capable of securing or following gainful employment. Here, the QTC examiner failed to provide a sufficient explanation for his opinion that the Veteran's unemployment, "is not due to the effects primarily of a mental condition." In this regard, the examiner does not provide any discussion on how the Veteran's service-connected disabilities, individually or in combination, to include PTSD, affect the Veteran's ability to secure or follow gainful employment. In light of the above, an additional VA examination should be conducted and the examiner provide an opinion as to whether the Veteran's service-connected disabilities, individually or in combination, to include PTSD, preclude the Veteran's ability to secure or follow gainful employment. 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. Obtain all available VA medical records dated since November 2012. The Veteran appears to receive his VA treatment through the VA Medical Center in Muskogee, Oklahoma. 2. Following completion of the above, schedule the Veteran for a VA examination by a psychiatrist. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) The examiner should review the claims folders and this REMAND order. The examiner should consider the evidence of record, to include the report of October 1989 VA examination, the report of September 2004 QTC examination, and the report of May 2010 QTC examination. (These documents are tabbed in the claims folders). The examiner should also consider those additional tabbed documents associated with the claims folders. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the Veteran's PTSD. The report of examination should contain a detailed account of all manifestations of the disability found to be present. A multi-axial assessment should be provided, and a thorough discussion of Axis V, with an explanation of the numeric code assigned, should be included. The report of examination must include the complete rationale for all opinions expressed. Additionally, the history taken by the examiner should include a detailed recitation of the Veteran's employment and education and vocational attainment. The examiner is requested to provide a definite opinion as to whether the Veteran's service-connected disabilities combine to render him unable to secure or follow substantially gainful employment consistent with the Veteran's education and occupational experience. (Service connection is in effect for PTSD, bilateral hearing loss, tinnitus, and status post shrapnel wounds of the right leg with scar.) If the examiner finds that the Veteran's service-connected disabilities make him unable to secure or follow substantially gainful employment only in combination with non-service-connected disabilities (e.g. arthritis), the examiner should say so and explain why. 3. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issue on appeal, as is listed on the title page of this Remand. If the benefit sought is denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran 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 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). _________________________________________________ THOMAS H. O'SHAY Acting 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).