Citation Nr: 1339868 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-48 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active military service from March 1969 to August 1970. This appeal to the Board of Veterans' Appeals (Board) is from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim of a TDIU. The Veteran filed a timely notice of disagreement and then he appealed the rating decision in November 2009. The Board is remanding this claim for a TDIU, to the RO via the Appeals Management Center (AMC) in Washington, DC, as the claim requires further development before being decided on appeal. REMAND The Veteran claims entitlement to a TDIU, maintaining that he is unable to obtain or maintain substantially gainful employment because of the severity of his service-connected disabilities. His service-connected disabilities are: (1) posttraumatic stress disorder (PTSD) with panic disorder with agoraphobia and dysthymia, rated 50-percent disabling; (2) limitation of motion of the left ankle, rated as 30-percent disabling; (3) tinnitus, rated as 10-percent disabling; (4) degenerative disc and joint disease of the lumbosacral spine, rated as 10-percent disabling; (5) left heel scars, a left eyebrow scar, degenerative joint disease left knee, atrophy left calf and shortening of left lower extremity, all rated as 0-percent disabling, or noncompensably rated. His totally disability evaluation is rated as 80 percent effective from November 12, 2008. The Veteran therefore meets the threshold minimum rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU, that is, without having to resort to the special extra-schedular provisions of § 4.16(b). Review of evidence in the claims folder shows that back in 2008, the Veteran reportedly was last employed in 2004 at a manufacturing company and that he was unable to work there any longer due to his psychiatric problems. Entitlement to a TDIU requires impairment so severe that it is impossible to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by disabilities that are not service connected. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2013). In making this determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). The record shows that the Veteran has not had a VA examination or a medical opinion concerning whether he is unemployable on account of his service-connected disabilities (and only these disabilities), and there has not been a medical examination of his service-connected disabilities since late 2008, approximately 5 years ago. This TDIU claim requires this further development. See Gary v. Brown, 7 Vet. App. 229, 232 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994). Also, in the November 2009 statement of the case (SOC), the RO indicated that the Veteran had not provided a requested VA Form 21-8940, Application for Unemployability Benefits. It should be again requested that he provide that information again. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide VA Form 21-8940, Application for Unemployability Benefits. 2. Have the Veteran examined to determine the effects of his service-connected disabilities (and only these disabilities) on his ability to obtain and maintain substantially gainful employment versus just marginal employment, if considering his prior work experience, level of education and training. At present, his service-connected disabilities are: (1) posttraumatic stress disorder (PTSD) with panic disorder with agoraphobia and dysthymia, rated 50-percent disabling; (2) limitation of motion of the left ankle, rated as 30-percent disabling; (3) tinnitus, rated as 10-percent disabling; (4) degenerative disc and joint disease of the lumbosacral spine, rated as 10-percent disabling; (5) left heel scars, a left eyebrow scar, degenerative joint disease left knee, atrophy left calf and shortening of left lower extremity, all rated as 0-percent disabling, or noncompensably rated. To facilitate making this important determination, the claims file, including a complete copy of this remand, must be made available to the examiner for review of the pertinent medical and other history. The Veteran is hereby advised that failure to report for these examinations, without good cause, will have adverse consequences on these pending claims and result in the summary denial of them. 38 C.F.R. § 3.655 (2013). 3. When the development requested has been completed, the case should be reviewed by the RO on the entire evidence of record. 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. 2013). _________________________________________________ K. PARAKKAL 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).