Citation Nr: 1329853 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-09 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from April 1994 to March 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Veteran is service connected for developmental dysplasia of each hip with osteoarthritis, each rated as 30 percent disabling. His combined rating is 60 percent. Total disability ratings for compensation may be assigned, where 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Thus, and as pointed out by his representative, the Veteran meets the schedular requirement as his disabilities combined affect both lower extremities. The Veteran suffered a severe motorcycle accident post-service in April 2008. He sustained various injuries, including to the cervical spine with left hemiparesis. When he was examined by VA in July 2009, the examiner noted that the Veteran had a smooth gait that was well-balanced. She opined that the Veteran was employable. However, the Veteran was subsequently awarded Social Security Administration (SSA) disability benefits, based on part on the residuals of the motorcycle accident as well as hip disability. Those records reflect that an evaluation performed in August 2009 (after the VA examination) was inconsistent with the Veteran's VA examination particularly with the Veteran's diminished abilities with gait, balance, and strength. This examiner apparently noted that the Veteran was disabled due to various disabilities, including hip pain. A more recent private Physical Work Evaluation made reference to hip pain and disability involving decreased range of motion and pain, as well as other nonservice-connected disabilities. In the August 2013 Informal Hearing Presentation, the Veteran's representative noted that although the RO denied the claim under the premise that the Veteran suffers from nonservice-connected issues, the Board is still required to decide, without regard to the nonservice-connected disabilities or his age, whether Veteran's service-connected disabilities are sufficiently incapacitating as to render him unemployable. Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). The representative stated that the 2009 VA examiner mentioned the Veteran's previous employment attempts, but failed to articulate the interaction between the service-connected hip disorders and the employment history. In addition, he argued that the Veteran's service-connected bilateral hip disorders sufficiently prevent his ability to obtain and maintain gainful employment to warrant a grant of TDIU benefits. In light of the foregoing, the Board finds that a contemporaneous VA examination is required to discern whether the Veteran's service-connected disabilities alone prevent employment. In addition, his updated VA treatment records from the Providence VA Medical Center should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record copies of all relevant clinical records of the Veteran's treatment at the Providence VA Medical Center. 2. Schedule a VA compensation examination to reassess the severity of the service-connected hip disabilities on the Veteran's ability to obtain and maintain substantially gainful employment (as opposed to marginal employment), given his level of education, prior work experience and training, but not any impact on account of his age or disabilities that are not service connected. It therefore is essential the examiner review the record for the pertinent medical and other history and perform all necessary diagnostic testing and evaluation. It also is imperative the examiner discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the record. 3. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 4. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ S. L. Kennedy 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).