Citation Nr: 1330955 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-20 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating due to individual unemployability based on service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Additionally, in his April 2010 substantive appeal, the Veteran requested a Board hearing at the local RO. However, in a December 2010 statement, he withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. 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, D.C. VA will notify the Veteran if further action is required. REMAND A review of the record indicates that further development is necessary with respect to the issue on appeal. The Veteran is seeking TDIU due to his service-connected disability. The Veteran is currently service connected for vasodepressor syncope, rated as 10 percent disabling. He has asserted that he last worked in January 2004 as a welder, but employers will no longer hire him because of his service-connected disability. A total rating based on unemployability due to service- connected disabilities may be granted where the schedular rating is less than total and the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). As such, in the instant case, the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a). However, it is VA policy that all Veteran's who are unable to work due to service connected disability will be awarded TDIU. 38 C.F.R. § 4.16(b). Where a Veteran does not meet the percentage requirements, but there is evidence of unemployability, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first insure that the TDIU claim is referred to the Director of Compensation and Pension for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran was most recently afforded a VA examination in October 2007 to address the severity of his service-connected disability. At that time, the examiner did not provide any opinion as to whether the Veteran's service-connected disability prevented him from obtaining or maintaining all gainful employment. Moreover, since such time, in October 2008, he submitted a letter from a potential employer indicating that they were unable to employ him due to his service-connected disability. Therefore, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's vasodepressor syncope and provide an opinion on his employability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Moreover, the record shows that the Veteran receives continuous treatment at the VA facility in Jacksonville, Florida. The most recent treatment records associated with the claims file are dated from April 2010. Additionally, it appears that he has also sought private treatment from Dr. Emas. Therefore, on remand, he should be requested to identify any VA or non-VA healthcare providers who have treated him for his service-connected vasodepressor syncope, to include Dr. Emas, and, thereafter, all such records, to include VA treatment records from the Jacksonville VA facility dated from April 2010 to the present, should be obtained for consideration in his appeal. Lastly, after the development discussed above, if the schedular requirements for TDIU are still not met, the agency of original jurisdiction (AOJ) should consider whether the case should be referred to the Director of Compensation and Pension for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). 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. The AOJ should request that the Veteran identify all VA and non-VA healthcare providers who have treated him for his vasodepressor syncope, to include Dr. Emas. After obtaining any necessary authorization forms, obtain all identified records, to include VA treatment records from the Jacksonville VA facility dated from April 2010 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the Veteran should be scheduled for an appropriate VA medical examination to ascertain the severity of his service-connected vasodepressor syncope and its impact on his ability to obtain and retain substantially gainful employment. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the record and examining the Veteran, the examiner should offer an opinion as to whether the service-connected vasodepressor syncope precludes the Veteran from securing and following substantially gainful employment, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. Any opinion expressed should be accompanied by supporting rationale. 3. If the VA examiner determines that the Veteran is precluded from securing and following substantially gainful employment due to his service-connected vasodepressor syncope and the Veteran still does not meet the schedular criteria, the AOJ should submit the Veteran's claim for a TDIU to the Director, Compensation and Pension Service for adjudication in accordance with the provisions of 38 C.F.R. 4.16(b). 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).