Citation Nr: 1330763 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-26 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1950 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2013. A copy of the transcript of that appeal has been associated with the claims file. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is 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, the disability shall be ratable at 60 percent or more, and if there are two or more 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. 38 C.F.R. § 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Veteran meets the schedular criteria for a TDIU rating. He is service connected for residuals of frozen foot, both left and right, each rated 30 percent disabling; cold weather injury to the left and right hand, each rated 30 percent disabling; gunshot wound residuals to the right arm rated 10 percent disabling; and he is rated at a non-compensable level for malaria residuals and a cold injury to the nose. Since the prior VA examinations, the Veteran's service-connected arthritis of the hands received an increased evaluation, indicating worsening of the arthritis. The Veteran's representative asserted during the hearing that these evaluations were not considered in the prior medical examinations and findings. The Board finds that a new opinion is required to determine if the Veteran is entitled to TDIU based upon his current service-connected disabilities. Additionally, the Veteran testified regarding outstanding VA treatment records at the Bay Pines Medical Center and the James A. Haley Medical Center. These records should be obtained and associated with the claims file. 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 and associate any outstanding VA treatment records, specifically to include any from Bay Pine Medical Center or James A. Haley Medical Center dated since November 2012. All attempts should be documented in the claims file. 2. After associating all pertinent outstanding records with the claims file, send the Veteran's claims file to a VA vocational rehabilitation counselor or other such appropriate person to provide the opinions requested below. The opinion provider is requested to evaluate and discuss the impact of the Veteran's service-connected disabilities, specifically residuals of a frozen right foot, residuals of a frozen left foot, arthritis due to cold injury of the right hand, arthritis due to cold injury of the left hand, residuals of a gunshot wound to the right arm with retained foreign bodies, residuals of malaria, and residuals of a cold injury to the nose, on the Veteran's employability, and offer an opinion as to whether the Veteran's service-connected disabilities, without consideration of his age or non-service- connected disabilities, render him unable to secure or maintain a substantially gainful occupation. If it is the examiner's opinion that the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his service-connected disabilities, given his skill set and educational background. 3. Then, readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran 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). _________________________________________________ MICHAEL E. KILCOYNE 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).