Citation Nr: 1333489 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-15 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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 The Veteran contends that he is entitled to a TDIU as a result of his service-connected disabilities. Specifically, he asserts that his service-connected disabilities, particularly his service-connected cerebrovascular accident (claimed as stroke) and associated weakness in his upper extremities, prevent him from being able to continue working as a farmhand, as he cannot complete prolonged walking, kneel down and get back up, or conduct work above his shoulders. In his April 2010 formal appeal to the Board, the Veteran asserts that the November 2009 VA examiner failed to fully take into consideration the effect of his service-connected disabilities on his inability to obtain and maintain substantially gainful employment. Rather, he states, the examiner merely "made a short note" regarding his service-connected disabilities, and that these disabilities prevent him from working in the same capacity as he has in the past. In the November 2009 VA examination report, the examiner indeed listed each of the Veteran's nine service-connected disabilities, including his service-connected cerebrovascular accident (claimed as stroke) associated with diabetes mellitus type II, his service-connected left and right upper extremity peripheral neuropathy associated with diabetes mellitus type II, and his left and right lower extremity peripheral neuropathy associated with diabetes mellitus type II. The examiner then listed the Veteran's non-service-connected disabilities, including bilateral shoulder pain and neck pain, and commented that the Veteran "is further moderately limited in his ability to maintain employment secondary to bilateral shoulder and neck pain," and that those disabilities "limit his ability to work above shoulder level, carry, lift and he has limited [range of motion] in the neck." Finally, in response to a direction for the examiner to specifically "identify the disabilities which prevent gainful employment," the examiner stated "[t]here is not a single condition that entirely prevents [the Veteran's] gainful employment. Limitations are listed above." Unfortunately, the November 2009 opinion is inadequate as the examiner appears to have used a standard not applicable to claims of entitlement to TDIU. A VA examiner need not identify a single service-connected disability that is solely responsible for the Veteran's unemployability. Rather, for TDIU purposes, a VA examiner must answer whether it is at least as likely as not that the Veteran is precluded by his service-connected disabilities, whether individually or in combination, from obtaining or retaining substantially gainful employment in a non-sheltered work environment. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.16 (2013). Thus, remand is required for a new VA examination addressing the correct standard. A remand is additionally necessary in order to obtain any outstanding Social Security Administration (SSA) records. The Board observes that at his July 2009 VA examination in connection with his claim of entitlement to service connection for post traumatic stress disorder (PTSD), the Veteran reported that "he suffered a stroke during the last year and has not worked since July of 2008, and has been disabled totally by Social Security since then." Given the likelihood that records by SSA might include those pertinent to the Veteran's service-connected disabilities and ability to obtain or maintain substantially gainful employment, the Board finds that remand to obtain any records associated with the grant of the award of SSA disability benefits is warranted. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, efforts must be made to contact the SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records from November 2009 to the present. 2. Request a copy of the Veteran's complete SSA disability benefits file, including any administrative decision(s) on the Veteran's application for SSA benefits and all of the underlying medical records. A copy of any response(s) from SSA, to include a negative reply, should be included in the claims file. All records provided by SSA should also be included in the claims file. 3. After completing the above development, schedule the Veteran for a VA examination to determine if his service-connected disabilities, whether individually or in combination, preclude him from substantially gainful employment. A list of current service-connected disabilities should be provided to the examiner. The claims folders, including a copy of this Remand, must be provided to the examiner for review. The examiner should elicit a history from the Veteran regarding his employment history and examine the Veteran thoroughly. While review of the entire file is required, attention is invited to the following particular records: (a) The October 2009 statement from the Veteran's employer stating that in July 2008 the Veteran "resigned due to personal medical reasons;" (b) The October 2009 VA treatment record and July 2009 VA examination report in which the Veteran reported that he stopped working as a farmhand after being hospitalized for a stroke in July 2008; and (c) The July 2009 VA examination in which the examiner stated "occupational impairment is also contributed by his physical problems with history of cerebrovascular accident, right-sided weakness, and depression." The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, considered individually and in combination, but without consideration of his non-service-connected disabilities, prevent him from obtaining or maintaining substantially gainful employment. In making this determination, the examiner should consider the Veteran's work experience and training, but not his age. The examiner should provide a complete rationale for any and all conclusions reached. 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 cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. After ensuring that the requested actions are completed, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate 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).