Citation Nr: 1409167 Decision Date: 03/05/14 Archive Date: 03/12/14 DOCKET NO. 07-36 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 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 maintain a substantially gainful occupation as a result of his service connected disabilities. When the Veteran filed his claim for TDIU he was service-connected for posttraumatic stress disorder (PTSD) at 70 percent disabling and ischemic heart disease (IHD) at 10 percent disabling. His IHD was increased to 30 percent disabling effective December 30, 2010. At his VA PTSD examination in December 2006, the Veteran reported that he used to own a business and work as an auto mechanic until 2005, when he suffered from a heart attack. The examiner noted that the Veteran has "made a small amount of money providing information on race car drivers." However, there is no indication that the Veteran has worked since that time. The examiner opined that the Veteran's PTSD does not "impair him more severely now than it did several years ago when he was working as an auto mechanic." The examiner noted that based on the Veteran's reported history "it is primarily his heart condition that has precluded him from being able to work." The examiner also noted that the Veteran's marijuana use may influence his "motivation to partake in employment." At the Veteran's VA heart examination in December 2010, the examiner opined that the Veteran's IHD does not impact the Veteran's ability to work. In his January 2010 statement, the Veteran indicated that after his heart attack and open heart surgery in December 2005, he quit working. He reported that he did not return to work as an auto mechanic because he felt that doing so "risked death if a heavy object were to fall on [his] chest." He also indicated that being 60 years old left him "fewer options for retraining and by the time [he] felt strong enough to work, [he] was eligible for early retirement with the [Social Security Administration]." The Veteran has been receiving outpatient psychiatric care from the Tucson VA Medical Center (VAMC). The treatment records are confusing on whether the Veteran is unemployable due to his service-connected disabilities. In March 2008, the Veteran's VA psychiatrist reported that the Veteran claimed he was unemployable because of the medication he takes for his PTSD. The psychiatrist reported that the "medication he is referring to is mirtazapine, a medication taken frequently by persons employed in the work-force." The psychiatrist reported the following: "There is no doubt that he experienced combat related trauma and has had more severe symptoms of PTSD in the past with residual mood and anxiety symptoms now. Is he a good candidate for being hired at [an] unspecified 'job' by an employer? Maybe not. Is he of good character, intellect and sufficient interpersonal skills to sustain employment? Probably. 'Unemployable' is not a simple matter [regarding] this particular Veteran." Earlier, in October 2007, the same VA psychiatrist reported that the Veteran spoke openly about his desire to be awarded a TDIU award "so he can hang out in coffee shops in Tucson and spend time with friends." The psychiatrist noted that it "is encouraging regarding the degree of improved psychological and functional improvement. However, it is also peculiar to observe no reticence in being 'honest' with commentary describing his goal to seek" a TDIU award. Additional development is needed before adjudication of this appeal can proceed. The opinion in the VA treatment records dated in March 2008 is not adequate to base a decision as it does not offer a definite opinion on the Veteran's employability. The opinion from the VA heart examination did not take into account the Veteran's service-connected PTSD. Finally, the opinion from the VA PTSD examination based the rationale on the Veteran's heart attack and the opinion was obtained over 7 years ago. None of the prior VA examinations considered the combined effect of all of the Veteran's service-connected disabilities on his ability to secure or follow a substantially gainful occupation. Therefore, it would be beneficial to obtain a pertinent medical opinion as to the effect of all of the Veteran's service connected disabilities on his employability. 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, 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Take appropriate measures to request any outstanding VA treatment records from the Tucson VAMC dated since July 2013. 2. Then schedule an appropriate VA examination to ascertain whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected disabilities (posttraumatic stress disorder and ischemic heart disease), either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The entire claims file, including a copy of this remand and the VA treatment records located in the Veteran's paperless Virtual VA claims file, should be made available to the examiner for review prior to the examination. All appropriate tests and studies should be conducted and any consultations deemed necessary should be accomplished. 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 any impairment caused by non-service-connected disabilities. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. Note: if the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). _________________________________________________ MICHAEL MARTIN 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).