Citation Nr: 1330384 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-12 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1967 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action, on his part, is required. REMAND The Veteran contends that the combined effects of his service-connected disabilities prevent him from securing and maintaining substantial gainful employment. His service connected disabilities are rated 80 percent combined. Because ratings for various service connected disabilities that share a common etiology combine to 40 percent or more, he meets the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating. The analysis turns to whether by virtue of his service connected disabilities the Veteran is precluded from engaging in substantially gainful employment (consistent with his education and experience). The evidence currently of record suggests he is capable of sedentary employment (see April 2009 and February 2010 VA examination reports); however, he alleges that he has learning disabilities that made it difficult for him to get through high school (he was in a special education class) and that sedentary jobs require training in areas where he has no previous experience and his learning disability precludes him from completing the necessary training. [Notably, on February 2010 VA examination, the examiner found that the Veteran's "cognition appear[s] to have been largely preserved as indicated by his being able to recall 4/4 after a delay, perform serial subtractions, and reason conceptually, and engage in visuospatial problem-solving. Taken together, these findings indicate that divided attention/working memory, secondary memory, and verbal and visuospatial reasoning and problem-solving have been spared."] While this opinion suggests that the Veteran may have the mental capacity for training for sedentary employment, it does not address his specific learning handicap (or reflect what that handicap may be). The record is inadequate to address the Veteran's specific allegations in this matter. Therefore, further development of pertinent evidence is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the Veteran to be evaluated by a vocational specialist to ascertain the nature of his claimed learning disability (which he alleges precludes him from completing training in sedentary employment) and to determine whether or not the learning disability would have such effect. The vocational specialist should elicit from the Veteran information regarding the specifics of his claimed learning disability that he claims required him to be in special education classes and made it difficult for him to complete high school. The specialist should ascertain (including by conducting any testing indicated) whether or not the Veteran indeed has such disability, and if so provide an opinion regarding the impact it has/would have on his ability to train for sedentary employment. The specialist should comment on the types of employment that would be precluded by his learning disability and the types of employment that remain feasible despite the learning disability. The specialist must explain the rationale for all opinions. 2. The RO should then arrange for an examination of the Veteran by an appropriate physician to assess the impact his service-connected disabilities (posttraumatic stress disorder; bilateral hearing loss; lumbosacral strain; residuals of a shell fragment wound to the right leg; an ulcer; right knee strain; residual scar; tinnitus; and right ankle strain), combined, have on his ability to maintain employment. The Veteran's claims file, to include this remand, must be reviewed by the examiner in conjunction with the examination. The examiner should note the findings by the vocational specialist (sought above), and elicit from the Veteran his complete employment history and his complaints regarding the impact of his disabilities on employment, and opine regarding the restrictions and limitations on employment that result from the combined effect of the Veteran's service connected disabilities (including specific comment on the Veteran's own reports regarding the impact of the disabilities on employment). The examiner should offer examples of the types of employment (consistent with any learning disability found by the vocational specialist) that would be precluded by the service connected disabilities, and the types of employment that remain feasible despite the combined effect of the service connected disabilities. The examiner must explain the rationale for all opinions. 3. The RO should then review the record and readjudicate the claim for a TDIU rating. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ GEORGE R. SENYK 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).