Citation Nr: 1329115 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 07-37 978A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in December 2012, which set aside a September 2011 Board decision and remanded the issue on appeal for additional development. The appeal arose from a January 2007 rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran submitted additional evidence in support of his claim in June 2013 and waived agency of original jurisdiction (AOJ) review. The Court has held that a claim for a TDIU is generally a rating theory and "not a separate claim for benefits." Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). It was noted, however, that bifurcation of a claim is generally a matter within VA discretion. Id. at 455, n. 7. The issue of entitlement to service connection for a heart disorder been raised by the record and is inextricably intertwined with the issue on appeal. Adjudication of this matter is required. Where a decision on one issue could have a "significant impact" upon another, the two claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc), aff'd, 631 F.3d 1380, 1383 (Fed.Cir.2011), vacated and remanded for reconsideration, --- U.S. ---, 132 S.Ct. 75, 181 L.Ed.2d 2 (2011), modified, 26 Vet. App. 31 (2012). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required on his part. REMAND In its December 2012 order, the Court found further action was required as to the issue of entitlement to a TDIU. It was noted that the Veteran's statements in June 2011 raised a claim for entitlement to service connection for a heart disorder and that the issue could affect the TDIU issue on appeal. The Board also notes that in June 2013 the Veteran submitted additional evidence in support of his claim including a copy of an April 2013 report from D.P., identified as an "Impartial Vocational Expert." Although D.P. found the Veteran's service-connected posttraumatic stress disorder (PTSD) had prevented him from securing and following a substantially gainful occupation since at least December 2000, the Board finds the provided opinion is inconsistent with the findings of a January 2009 VA examination. It was asserted, in essence, that the January 2009 examiner had failed to address the issue of whether the Veteran was able to secure and follow substantially gainful employment. The Board finds, however, that D.P. appears to have misconstrued the opinion of the January 2009 VA examiner who specifically found that "[t]here is no evidence of total occupational impairment, and it is not believed that this veteran is unemployable due solely to the symptoms of PTSD and associated mood and panic symptoms." Therefore, additional development is required for an adequate determination of the issue on appeal. Accordingly, the case is REMANDED for the following action: 1. Develop and adjudicate the issue of entitlement to service connection for a heart disorder. The Veteran and his attorney should be notified of any determination adverse to the claim and advised of the procedural and appellate rights. All efforts to develop and adjudicate the claim must be documented in the claims file. 2. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issue on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Whether or not the Veteran responds, appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) explain that he is ultimately responsible for providing the evidence. 3. Following completion of the above, schedule the Veteran for an appropriate VA examination to address whether his service-connected disabilities, which presently include PTSD, tinnitus, and hearing loss, render him unable to secure and maintain substantially gainful employment. The examiner must describe the disabilities' functional impairment and how that impairment impacts physical and sedentary employment. Advancing age or intercurrent disability may not be used as a basis for a total disability rating and marginal employment is not considered to be substantially gainful employment. All indicated tests and studies are to be performed. The examiner must review the claims file and must note that review in the report. Findings should be provided based on the results of examination, the credible lay evidence of symptom manifestation, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all the evidence of record. If any benefit sought remains denied, the appellant and his attorney should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review of all issues for which an appeal has been perfected, if in order. 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). _________________________________________________ BARBARA B. COPELAND 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).