Citation Nr: 1333135 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-28 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and B.Y. ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1964. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction over the claims was later transferred to the Montgomery, Alabama RO. The Veteran's April 2008 claim was granted in part and denied in part in a March 2009 rating decision that granted service-connection for PTSD evaluated as 30 percent disabling and that denied service-connection for bilateral hearing loss and tinnitus. The Veteran disagreed and perfected an appeal. In June 2011, the Veteran and his son, B.Y., presented testimony in support of the Veteran's claims at a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is included in the Veteran's VA claims folder. In January 2013, this matter was last before the Board. At that time, the Board granted entitlement to an initial 50 percent evaluation for service-connected posttraumatic stress disorder (PTSD), but denied a higher evaluation. It also remanded claims of entitlement to service connection for bilateral hearing loss and tinnitus, as well as a claim of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a July 2013 rating decision, the Montgomery, Alabama RO granted the Veteran's claims of entitlement to service connection for tinnitus and bilateral hearing loss, and assigned evaluations of 10 percent and 40 percent, respectively. 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 As noted above, in January 2013, the Board remanded the Veteran's claims for service connection of bilateral hearing loss and tinnitus, particularly to obtain etiological opinions on these disabilities. In June 2013, such opinions were obtained. A review of the examination report notes that the examiner remarked that the Veteran's bilateral hearing loss (evaluated as 30 percent disabling) caused him "difficulty hearing and understanding with or without his hearing aids" in terms of impact on his "ability to work." With respect to tinnitus and its effect on the Veteran's "ability to work," the examiner remarked that it "is aggravating to him." In June 2013, the Veteran was also provided a VA psychiatric examination. In terms of employability, the examination report documents that the Veteran related having last worked in 2008 at a concrete company and that he quit working there as he reportedly "couldn't handle the stress." The examiner addressed employability, noting that the Veteran's PTSD symptoms were "considered moderately impairing with regards to occupational functioning," although they "may lead to impairment on jobs with high cognitive/emotional demands or high productivity/efficiency expectations." The examiner concluded, however, that the Veteran "is not considered unemployable due to PTSD symptoms alone at this time." VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. Along these lines, the Board observes that being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 3 61, 363 (1993). It is also the policy of the VA, however, that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The VA opinions addressed the wrong standard. The question is not to what extent the Veteran's service-connected conditions have impacted his ability to work, but rather whether he is unable to secure and follow a substantially gainful occupation by reason of service-connected disability/ies. Moreover, the opinions do not address the Veteran's service-connected PTSD, bilateral hearing loss and tinnitus in the aggregate in regards to a TDIU. Accordingly, the opinions are inadequate. 38 C.F.R. § 4.2. Lastly, via a letter dated June 3, 2013, the Montgomery, Alabama RO attempted to inform the Veteran of the standards of establishing entitlement to a TDIU, VA's and his respective responsibilities in obtaining and providing evidence, and how VA determines effective dates and disability ratings. The letter also asked that he have his last employer complete and return an enclosed VA Form 21-4192 (Request for Employment Information). The RO sent the letter to an address in Tennessee and the letter was returned as undeliverable. However, a review of the record shows that the Veteran currently resides in Alabama, and that VA has his current address. Accordingly, upon remand the RO is instructed to re-send this letter to the Veteran at his Alabama address, which is reflected most recently in a September 24, 2013, letter from the Board to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Re-send the June 3, 2013, letter regarding the Veteran's claim of entitlement to a TDIU to his address in Alabama, as disclosed within the claims file and reflected in the September 24, 2013, letter from the Board to the Veteran. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (a 50 percent or greater probability) that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. 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 non-service-connected disabilities. All opinions must be accompanied by a complete rationale. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the development directed above has been completed to the extent possible, readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board 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 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). _________________________________________________ BETHANY L. BUCK 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) (2013).