Citation Nr: 1338334 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 06-16 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total rating based on individual unemployability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had active duty from July 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which continued a 30 percent rating for posttraumatic stress disorder (PTSD). The rating was subsequently increased to 50 percent in an April 2006 rating decision. The Veteran formalized an appeal of the August 2004 rating decision shortly after the April 2004 rating decision was issued. In a September 2010 decision, the Board granted a 70 percent rating for PTSD and remanded the issue of entitlement to a TDIU. The Board ultimately denied the claim for a TDIU in a July 2012 decision. The Veteran appealed the Board's July 2012 decision to the Court of Appeals for Veterans Claims (Court). In an August 2013 Joint Motion for Remand (Joint Motion), the parties requested that the Court vacate and remand the Board's decision. The Court granted the Joint Motion in an August 2013 Order. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. 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 is service-connected for PTSD with marijuana abuse, entrinsic bronchial asthma, and a scar fragment wound on the right upper lateral abdomen. The Joint Motion determined that remand was needed because the Board relied upon an inadequate VA examination in denying the claim for entitlement to a TDIU. More specifically, the Joint Motion determined that the February 2012 VA examination report appears to have separated the effects of the Veteran's drug abuse from the effects of the PTSD, rather than determining whether the Veteran's service-connected disabilities as a whole render him unemployable. The Joint Motion also determined that it was unclear whether the February 2012 VA opinion took into account the Veteran's marijuana abuse as part of the service-connected PTSD. Lastly, the Joint Motion determined that the February 2012 VA opinion that the Veteran's marijuana abuse "could potentially impact employment" was unclear because the record reflects a present impact on the Veteran's employment. The Joint Motion determined that remand was warranted for a new VA examination that addresses whether the Veteran is unemployable due to his service-connected disabilities as a whole. Given the findings in the Joint Motion, a new examination should be scheduled. In addition to scheduling a new VA examination, additional VA treatment records should be obtained and the Veteran's vocational rehabilitation folder, which was referenced in a March 2012 supplemental statement of the case but is not part of the paper or electronic files, must be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from Omaha VA Medical Center, dated since November 2008. 2. Obtain the Veteran's vocational rehabilitation folder. 3. When the foregoing development has been completed, schedule the Veteran for an appropriate VA examination. The examiner must review the claims file and all relevant electronic medical records. Any indicated studies are to be performed. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (PTSD with marijuana abuse, evaluated as 70 percent disabling; entrinsic bronchial asthma, evaluated as 30 percent disabling; and a scar fragment wound on the right upper lateral abdomen, evaluated as 0 percent disabling) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The examiner is notified that the Veteran's marijuana abuse is part of his service-connected PTSD. The examiner must not distinguish the effects of the Veteran's drug abuse from the effects of the PTSD. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. If the examiner is unable to provide any of the requested information without resorting to speculation, it should be so stated. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. 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 or by the U.S. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).