Citation Nr: 1334103 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-37 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 2003 to February 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO), which denied the Veteran's claim of entitlement to a TDIU. In March 2012, the Board remanded the claim for additional development. 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 may be appropriate when the schedular rating for the veteran's service-connected disabilities is less than total but the veteran is unable to secure or follow a substantially gainful occupation as a result of such disabilities. See 38 C.F.R. § 4.16(a) (2013). A TDIU can be assigned when the schedular rating is less than total if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there are two or more disabilities, there is at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341 (2013). The Veteran is service-connected for the following disabilities: (a) an acquired psychiatric condition, 50 percent disabling, (b) temporomandibular joint dislocation, 20 percent disabling, (c) tinnitus, 10 percent disabling, and (d) carpal tunnel syndrome for each upper extremity, 10 percent disabling for each extremity. Her combined service connected disability rating is 70 percent. The Veteran has thus satisfied the above schedular requirements for a TDIU, and the remaining determination is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of such disabilities. In March 2012, the Board remanded the claim for a VA examination and medical opinion to determine whether the Veteran's service-connected disabilities preclude substantially gainful employment. This examination was administered in August 2012. The report was of a General Medical Examination, and the report reflects that a psychiatric questionnaire would be completed as a part of the General Medical exam report. After considering the results of a peripheral nerve examination and a temporomandibular joint (TMJ) examination, the August 2012 VA examiner opined that the Veteran did not appear to have a physical reason not to work. However, no opinion was offered which incorporated the Veteran's service-connected psychiatric disability. Indeed, while the August 2012 VA examination report included specific examination results for the peripheral nerves and TMJ, a careful review of the claims folder and Virtual VA file yielded negative results for psychiatric examination results. The Board notes that TDIU may be appropriate when the schedular rating for the veteran's service-connected disabilities is less than total but the veteran is unable to secure or follow a substantially gainful occupation as a result of such disabilities. See 38 C.F.R. § 4.16(a) (2013). In this case, the August 2012 VA examiner does not appear to have considered the effect of the Veteran's service-connected psychiatric disability in connection with her service-connected physical disabilities with respect to her employability. This is particularly concerning as of all of the Veteran's service-connected disabilities, her psychiatric disability is rated as the most disabling. As such, on remand the Veteran should be afforded a VA examination for an opinion regarding the effect of all of her service connected disabilities on her employability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to evaluate the effects of her service-connected disabilities-including her psychiatric disability-on her ability to obtain substantially gainful employment. The examination should be conducted by a person who is qualified to conduct such an examination and offer an opinion regarding the Veteran's ability to procure and maintain gainful employment consistent with her education and occupational experience, irrespective of age and any nonservice-connected disorders. The claims file must be made available for review and the examiner's report should reflect that such review occurred. Specifically, the examiner is requested to offer an opinion as to whether the Veteran's service-connected acquired psychiatric disability alone or in combination with her other service-connected disabilities are so severe as to preclude substantially gainful employment. This opinion should include a discussion of the Veteran's service-connected psychiatric disability. If the Veteran's nonservice-connected disabilities preclude substantially gainful employment, such should be stated. The examiner should not base the opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The opinion provider should cite to the medical and competent lay evidence of record, including the Veteran's contentions as to her ability to maintain employment, and explain the rationale for all opinions given. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ DAVID L. WIGHT 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).