Citation Nr: 1554064 Decision Date: 12/29/15 Archive Date: 01/07/16 DOCKET NO. 14-03 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969. Service in the Republic of Vietnam is indicated by the evidence of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In August 2015, the Veteran testified at a personal hearing conducted via videoconferencing equipment which was chaired by the undersigned Acting Veterans Law Judge (AVLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2015). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2015). The Veteran's service-connected disabilities are the following: cardiomyopathy, evaluated as 60 percent disabling; posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling; dermatitis, evaluated as 10 percent disabling; degenerative joint disease of the lumbar spine, evaluated as 10 percent disabling; diabetes mellitus type II, evaluated as 10 percent disabling; and hypertension, evaluated as noncompensable (zero percent disabling). His total combined disability rating is 90 percent. Therefore, his service-connected disabilities meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2015). The Veteran is 68 years old. He has been unemployed since 2009 and last worked full-time as a deputy sheriff. See, e.g., the Veteran's application for TDIU dated November 2013. The Board observes that on the Veteran's application for TDIU dated November 2013, he reported that only his heart disability precluded him from obtaining substantial and gainful occupation. However, he reported during an October 2013 VA examination that his lumbar spine disability also affects his employment in that his back pain, weakness, and fatigue limit his ability to engage in work requiring heavy lifting and carrying. Moreover, although he reported at a June 2015 VA examination that he left his employment due to his heart disability, at his August 2015 Board hearing, the Veteran testified that his PTSD affects his employment in that he experiences anxiety in crowds, has trouble concentrating, and has decreased social functioning. The Board finds that the current evidence of record is inadequate to determine whether the Veteran's service-connected disabilities, in particular his heart disability, PTSD, and lumbar spine disability preclude him from obtaining substantial and gainful employment. In this regard, a VA examiner opined in a June 2011 VA psychological examination report that the Veteran's psychiatric symptoms have a mild impact on social functioning and minimal to no impact on his ability to obtain or maintain gainful employment whether physical or sedentary. However, another VA examiner opined in an April 2011 report that with consideration of the Veteran's heart disability and the PTSD, it "may be difficult" for the Veteran to obtain and maintain gainful employment and that the Veteran appeared unemployable at the time of examination. In an addendum report dated July 2011, another VA examiner determined that the Veteran's heart disability did not preclude him from minimum physical and sedentary employment. However, the examiner did not provide an opinion as to the effect of the Veteran's PTSD on his employment. Further, a VA examiner opined in a December 2013 report that based on review of the Veteran's recent medical records, his heart disability renders him at least as likely as not unable to maintain physical employment but that he may tolerate sedentary employment. Pertinently, the VA examiner did not address the effect of the Veteran's PTSD or his lumbar spine disability on his employability. In contrast to the December 2013 examiner's opinion, F.S., M.D., a private physician who has treated the Veteran for cardiovascular issues for many years, opined in a December 2013 report that given the Veteran's severe cardiac issues, he is unable to resume his duties as a deputy sheriff and should be seen as unemployable. Notably, Dr. F.S. did not specify whether the Veteran is capable of sedentary employment. In light of the ambiguities above, the Board is of the opinion that a VA examination would be probative in ascertaining the functional impairment of the Veteran's service-connected disabilities, in particular his heart disability, PTSD, and lumbar spine disability, and the effect of these disabilities in the aggregate on his employability. See 38 C.F.R. § 3.159(c)(4) (2015) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination by an appropriate professional with regard to his claim of entitlement to TDIU. All necessary testing must be accomplished. The entire claims folder, to include all electronic records, must be reviewed by the examiner. The examiner must provide an opinion as to the functional impairment of the Veteran's service-connected disabilities, which include cardiomyopathy, PTSD, degenerative joint disease of the lumbosacral spine, dermatitis, diabetes mellitus type II, and hypertension. The examiner should interview the Veteran as to his employment and education history. The examiner is asked to provide an assessment of the functional impairment associated with the Veteran's service-connected disabilities in the aggregate as related to the Veteran's ability to perform activities required in various occupational situations such as walking, standing, and sedentary tasks. The examiner must also address the Veteran's ability to obtain substantial gainful employment given his level of education and the type of employment he would be able to obtain. A full and complete rationale for any opinions expressed is required. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange any additional development indicated. Then readjudicate the TDIU claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on this matter. See 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 2014). _________________________________________________ A.C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).