Citation Nr: 1329922 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-12 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from November 1952 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The case was previously before the Board in January 2012 wherein the Board denied the benefits sought on appeal. The appellant appealed the Board's January 2012 decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2013, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order that same month, granting the Joint Motion, and returned the case to the Board. In the January 2012 decision, the Board also denied the appellant's claim for an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). The appellant did not appeal this decision. Thus, it is not before the Board. 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 Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that the claim must be remanded to obtain a new VA examination to determine whether the appellant's service-connected PTSD alone renders him unemployable. VA previously obtained medical opinions in September 2008, March 2010 and April 2011. However, the opinions were inadequate. The examiners opined that the appellant's PTSD did not solely make him unemployable. As discussed in the Joint Motion for Remand, the Court has held that when a Veteran is unemployable and suffers from a combination of service-connected and non-service-connected disabilities even if the Board determined ". . . that appellant's unemployability was a result of his age and non-service-connected . . . condition, its task was not finished. The [Board] still was required to decide, without regard to the non-service-connected disabilities or his age, whether appellant's service-connected disabilities are sufficiently incapacitating as to render him unemployable." Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). As the previous VA examinations did not adequately address whether the appellant's service-connected PTSD alone renders him unemployable, the claim must be remanded for a new VA examination. The VA treatment records in the file only date to March 2010. As the records are relevant to the appellant's claim, the Board requests the appellant's complete VA treatment records from March 2010 to present. 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 of the appellant's VA treatment records from March 2010 to present. If no records are available, the claims folder must indicate this fact. 2. After completion of the above, schedule the appellant for a VA examination to evaluate the current symptoms of the appellant's service-connected PTSD. The examiner should provide an opinion as to whether it is at least as likely as not that the appellant's service-connected PTSD alone renders him unable to secure or follow a substantially gainful occupation. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 3. Thereafter, readjudicate the issue on appeal of entitlement to a TDIU. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ ROBERT E. SULLIVAN 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).