Citation Nr: 1329177 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 06-22 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from March 1991 to October 1993. This case came before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the case was subsequently transferred to the RO in Honolulu, Hawaii. When this case was most recently before the Board in September 2012, it was decided in part remanded in part. It has since returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. REMAND The Board is of the opinion that additional development is required before the Veteran's claim is decided. As noted in the Board's prior remand, the issue of entitlement to a TDIU was raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (2013). "Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In this case, service connection is in effect for the following disabilities: a mood disorder, rated as 30 percent disabling; complex revision right total knee replacement, rated as 30 percent disabling; degenerative joint disease, left knee, with instability, rated as 20 percent disabling; degenerative joint disease, left knee, with painful motion, rated as 10 percent disabling; and arthritis, right knee, rated as noncompensable. Applying the bilateral factor to the right and left knees, the Veteran has a single disability rated at more than 40 percent, as well as a combined rating of 70 percent. 38 C.F.R. §§ 4.25, 4.26 (2013). Therefore, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board acknowledges that no medical examination was provided and no medical opinion was obtained in response to the raised claim for a TDIU. Such an examination is necessary in order to adequately address the issue at hand. The Veteran should be afforded a VA examination to determine whether his service-connected disabilities are sufficient by themselves to render him unemployable. Finally, the Board notes that the most recent treatment records related to the Veteran's care are dated in May 2013 from the VA Pacific Islands Healthcare System (HCS) in Honolulu, Hawaii. In light of these circumstances, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent treatment records, to include records pertaining to the Veteran's treatment for his service connected disabilities since May 2013 at the VA Pacific Islands HCS. 2. If any requested records related to remand instruction 1 are not available, such should be reflected in the record and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Once the record is complete to the extent possible, the RO or the AMC should afford the Veteran an appropriate VA examination or examinations to determine the impact his service-connected disabilities have on his employability. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities are sufficient by themselves to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and employment background. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The rationale for all opinions expressed must be provided. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ Shane A. Durkin 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) (2013).