Citation Nr: 1331882 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-09 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from March 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran testified before the undersigned Veterans Law Judge in August 2011. A transcript of the hearing is of record. At the Veteran's hearing he submitted additional medical records with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records; though there is no supplemental statement of the case (SSOC) the Board finds that the Veteran is not prejudiced because the issue on appeal is being remanded for further development. There is also a January 2012 RO rating decision that granted the Veteran service connection for tinnitus and assigned an initial 10 percent disability rating effective August 9, 2011, and service connection for bilateral hearing loss and assigned an initial, noncompensable rating effective August 9, 2011. The Veteran has not filed a substantive appeal on those issues and thus, they are not before the Board. 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 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 he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). The Veteran testified that he is unemployable as the result of his service-connected disabilities. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent scheduler evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Veteran is currently service-connected for posttraumatic stress disorder (PTSD) (rated as 30 percent disabling effective January 28, 2002, 50 percent disabling effective April 26, 2005, and 70 percent effective December 24, 2005), tinnitus (rated as 10 percent disabling effective August 9, 2011), and bilateral hearing loss (rated as noncompensable effective August 9, 2011). The Veteran's combined evaluation is 30 percent effective January 28, 2002; 50 percent effective April 26, 2005; and 70 percent effective August 9, 2011. Thus, since August 9, 2011, the Veteran meets the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a). Since the Veteran meets the threshold rating criteria under 38 C.F.R. § 4.16(a) a determination needs to be made as to whether the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. According to both the Veteran's testimony and his Application for Compensation on Unemployability he was self employed as a roofer until December 2008. The June 2009 VA examiner stated that the Veteran would still be working in some capacity except for his physical pain; however, he has become less able to interact with others. He further stated that the combination of physical health problems/pain and incremental exacerbation that cause the Veteran's PTSD symptoms render him unemployable; he could not do physical labor or negotiate jobs with others due to interpersonal/social discomfort. The September 2010 VA examiner stated that a combination of the Veteran's physical problems exacerbated his PTSD symptoms and he appeared to be unemployable; he was unable to do physical labor and has increasingly isolated himself socially. In July 2011 the VA examiner stated that the Veteran's unemployability was not totally based on the Veteran's service-connected PTSD. The Board finds that the RO should schedule the Veteran for a VA examination to determine whether his service-connected disabilities render him incapable of performing the mental and physical acts required for substantially gainful employment, given his educational and occupational background. A new VA examination is warranted in order to obtain an opinion based solely on the Veteran's service-connected disabilities (PTSD, tinnitus, and bilateral hearing loss) and it should not include the Veteran's service-connected disabilities (specifically, any spine condition). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all updated VA and private treatment records. 2. The Veteran should be afforded a VA examination to determine whether his service-connected disabilities preclude him from obtaining and maintaining all forms of substantially gainful employment. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Based on a review of the record evidence, the examiner should identify the symptoms and manifestations associated with the Veteran's service-connected disabilities (PTSD, tinnitus, and bilateral hearing loss) and opine as to whether his disabilities render the Veteran incapable of performing the mental and physical acts required for all forms of employment, given his educational and occupational background. In making this assessment, the examiner is advised that neither the Veteran's age nor his non-service-connected disabilities should be considered. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 3. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ MARJORIE A. AUER 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).