Citation Nr: 1336014 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-25 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 22, 2010. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active service from January 1960 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied, in pertinent part, the Veteran's claim for entitlement to TDIU. The Veteran disagreed with this decision in September 2008. He perfected a timely appeal in July 2009. In an April 2011 rating decision, the RO granted the Veteran service-connection for a major depressive disorder secondary to his service-connected headaches with a 100 percent rating effective November 22, 2010. The Veteran was service-connected at that time for headaches rated at 50 percent and post-operative residuals of a lipoma rated at 10 percent. As such, the Veteran was also awarded special monthly compensation (SMC) S-1 in accordance with 38 U.S.C.A. § 1114 (s) and 38 C.F.R. § 3.350 (i) on account of being statutorily designated as housebound by having one condition evaluated at 100 percent and other conditions totaling at least 60 percent. Because the Veteran is receiving a schedular rating that is total and SMC at the housebound rate from November 22, 2010, the scope of the Veteran's claim is limited to the period prior to November 22, 2010 as reflected in the characterization of the issue on the title page. A Travel Board hearing was held at the RO in May 2013 before the undersigned and a copy of the hearing transcript has been added to the record. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated July 1997 to December 2005, March 2009 to June 2012, copies of service treatment records (STRs), and a transcript of the May 2013 Board hearing. 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 regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. In particular, the AMC should attempt to obtain the Veteran's Social Security Administration (SSA) records, to include the decision document upon which his award was based, and should also obtain an adequate opinion in order to evaluate the Veteran's employability with regard to his service-connected conditions prior to November 22, 2010. The Veteran has noted, at the 2013 Board hearing in particular, that he was unemployable prior to November 22, 2010 as a result of his service-connected headache disorder. To this effect, the Veteran further stated that, although he did not stop working until 1999, he has been unemployable since 1960. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). Here, during the time period from when the Veteran filed his claim, August 14, 2007, to November 22, 2010, the Veteran's service-connected disabilities included headaches rated at 50 percent disabling and post-operative residuals of a lipoma rated at 10 percent disabling. Because these conditions total 60 percent and were derived from a common etiology, as they were both related to a lipoma operation in service, the percentage requirement for TDIU was met. 38 C.F.R. § 4.16(a) (2). Therefore, the issue of entitlement to TDIU turns upon a showing of actual unemployability due to these service-connected conditions during the time period at issue. First, remand is required to obtain the Veteran's outstanding SSA records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including records from Federal agencies, such as relevant SSA records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The claims file shows that the Veteran was in receipt of SSA benefits, as supporting medical documents upon which a decision was made were associated with the claims file. However, these records did not contain a decision document showing upon which disabilities the Veteran's award was based. At his May 2013 Board hearing, the Veteran had suggested that his headaches were one of the considered disabilities. As such, remand is required to obtain the SSA records. Second, remand is required to obtain an adequate medical opinion that discusses the Veteran's employability with regard to his service-connected conditions prior to November 22, 2010. The Veteran was provided with a VA general examination in June 2008. Although the examination was thorough in detailing the Veteran's service-connected and non service-connected conditions, the examiner did not provide an adequate opinion upon which the claim could be properly evaluated and adjudicated. To this effect, the examiner merely stated with regard to the Veteran's employability the following: "That the patient is receiving Social Security Disability Income says much about his ability to work but the primary problems are non-service connected." The question that must be addressed is not whether the Veteran is primarily unable to work due to nonservice connected disabilities but rather whether the Veteran was in fact rendered unemployable due to service-connected disabilities prior to November 22, 2010. As such, this claim must be remanded for a medical opinion that specifically addresses the medical question that is before the Board. Accordingly, the case is REMANDED for the following action: 1. The AMC should contact SSA to obtain any outstanding records, to include the decision document upon which the Veteran's award was made. 2. After any new evidence has been associated with the claims file, the AMC should obtain a medical opinion to determine whether, during the period prior to November 22, 2010, the Veteran was unable to secure or follow a substantially gainful occupation due to service connected disabilities. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's service connected disabilities (headaches rated as 50 percent disabling and postoperative residuals, lipoma, back of right ear, with skull pain rated as 10 percent disabling) rendered him unable to secure or follow a substantially gainful occupation prior to November 22, 2010. The examiner should discuss the Veteran's employment history and educational attainment; however, the examiner must not take into consideration factors other than the Veteran's service-connected disabilities (i.e., age or nonservice-connected disabilities). 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ TANYA A. SMITH Acting 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).