Citation Nr: 1337276 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-28 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from June 1977 to June 1981. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in May 2013; the hearing transcript has been associated with the file and has been reviewed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 he is unable to obtain or retain employment on account of his service-connected disabilities. Threshold entitlement to TDIU is shown where a veteran is rated at least 60 percent disabled due to a single service-connected disability, or has multiple service connected disabilities combining to at least a 70 percent evaluation, where one disability is rated at least 40 percent disabling. 38 C.F.R. § 4.16 (2013). A veteran who is shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2013); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (a determination must be made as to whether there are circumstances in a veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a TDIU due solely to service-connected disability(ies)). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. §§ 3.321, 4.16(b) (2013). The Veteran's service-connected disabilities are depressive disorder rated as 50 percent disabling; cervical spine degenerative arthritis rated as 30 percent disabling; left thumb ankylosis rated as 20 percent disabling; compression fractures at T12, L1 and L2 with degenerative joint disease at T9 and T10 rated as 20 percent disabling; right knee osteoarthritis rated as 10 percent disabling; tinnitus rated as 10 percent disabling; post traumatic muscle tension headaches rated as 10 percent disabling; and bilateral hearing loss rated as noncompensable. His combined disability rating is 80 percent, thus he meets the percentage criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). The Veteran's last VA examinations were in 2011, including hearing and general medical examinations in February and a mental health examination in March. In March 2011, after the VA examinations, the Veteran sought treatment at the VA for syncopal episodes he reported were preceded by getting upset, headaches, and turning his head too quickly to the side. He also reported double vision with turning his head to the side. A treatment note shows he was told he could not drive due to the episodes, and a Wisconsin Department of Transportation record from March 2011 reflects that the Veteran's license was cancelled indefinitely due to a review of medical records showing episodes of altered consciousness or loss of bodily control and vision that interferes with safe driving. The Veteran's most recent VA examinations do not reflect that the examiners were aware of the Veteran's reported episodes of syncope or double vision or the loss of his driver's license. Further, the Veteran's treatment records do not show that a cause of the episodes has been determined, to include whether the symptoms are due to one of his service-connected disabilities such as his post traumatic muscle tension headaches or his cervical spine degenerative arthritis. At his May 2013 hearing the Veteran reported his headaches and loss of balance prevent him from working as a welder. He also reported looking at a computer or television screen gives him a headache. In an October 2011 statement the Veteran stated that his disabilities had gotten worse since he started his appeal. The Board finds that a new VA examination is warranted to consider the current severity of the Veteran's service-connected disabilities, including whether his recently reported episodes of double vision and passing out that precipitated the loss of his driver's license are a manifestation of his service-connected disabilities, and whether the Veteran's service-connected disabilities render him unable to obtain or retain substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from September 2011 to present. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 2. Once the above development is completed, schedule the Veteran for a VA examination. The examiner should be provided with the Veteran's claim file and asked to fully review it. The examiner should opine as to the following: a) Whether the Veteran's reported episodes of double vision and passing out are a manifestation of one of his service-connected disabilities. b) Whether the Veteran is precluded from obtaining or maintaining any gainful employment (consistent with his education and occupational experience) solely due to his service-connected disabilities (depressive disorder; cervical spine degenerative arthritis; left thumb ankylosis; compression fractures at T12, L1 and L2 with degenerative joint disease at T9 and; right knee osteoarthritis; tinnitus; post traumatic muscle tension headaches; and bilateral hearing loss), either individually or in concert. Any opinion should be supported by a rationale. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable 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 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). _________________________________________________ M. TENNER 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).