Citation Nr: 1600999 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 13-18 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Patricia M. Dunn WITNESS AT HEARING ON APPEAL The Veteran's wife ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran had active duty service from May 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Veteran's wife testified at a videoconference hearing before the Board in August 2013. A transcript of that hearing has been associated with the record. The Board notes that the Veteran and his representative requested an additional hearing regarding the issue on appeal. As the Veteran's previous hearing addressed the increased rating issue, the Veteran has not shown good cause for a second hearing and that request has been denied. An earlier effective date of January 23, 1985 was granted in a March 2014 Board decision and implemented by a March 2014 rating decision. The claim for a higher initial disability rating will be addressed regarding the entire period on appeal. In March 2014, the Board also remanded the issue of entitlement to an initial disability rating in excess of 30 percent for PTSD to afford the Veteran a new VA examination to determine the current level of severity of his PTSD. The Veteran was afforded a VA examination in March 2014. The examiner provided the requested information and a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PTSD manifests with a considerably impaired ability to establish or maintain effective or favorable relationships with people and considerable industrial impairment by reason of psychoneurotic symptoms, causing reduced reliability, flexibility and efficiency levels. 2. Throughout the period on appeal, the Veteran's PTSD did not manifest with a severely impaired ability to establish and maintain effective or favorable relationships with people or severe impairment in the ability to obtain or retain employment due to the severity of the psychoneurotic symptoms. 3. From November 7, 1996 forward, the Veteran's PTSD did not manifest with occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for PTSD have been met throughout the initial period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.132 (1996), 3.159, 3.321, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The appeal for a higher initial rating arises from a disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA regarding that issue. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, social security earning statements, private treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in January 1986, June 2012, and March 2014. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Veterans Law Judge (VLJ) noted the elements of the claim that were lacking to substantiate the claim for an increased rating. The VLJ asked questions to ascertain the extent of any current symptoms or treatment for the disability and the level of severity of the disability throughout the period on appeal. The Veteran's wife was assisted at the hearing by an their attorney. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran's wife or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran's wife, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her husband's claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Higher Initial Rating - PTSD Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA considers diagnoses of mental disorders in accordance with the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-V). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. In reviewing the evidence, the Board notes that the Veteran's representative has asserted that the March 2014 VA examination is insufficient because the examiner used the DSM-V criteria for a psychiatric disability. The Board notes that when addressing an increased rating claim, the issue in determining the sufficiency of an examination is whether the examiner provided enough information to determine if the Veteran meets the rating criteria. Although the diagnosis was addressed under the DSM-V, the examiner still thoroughly described the Veteran's symptoms and performed an examination with results that are applicable to the rating criteria. Therefore, the representative's assertion is unfounded. The Veteran's PTSD has been evaluated at 30 percent disabling from January 23, 1985. The Veteran has asserted that he should be assigned a higher disability rating throughout the period on appeal. Complicating consideration of the Veteran's claim for a higher rating for PTSD, effective from January 23, 1985 to the present is the fact that the criteria for rating psychiatric disabilities were revised, effective November 7, 1996. Thus, the Board will proceed with consideration of this appeal, applying the version of the criteria which is more favorable to the Veteran. However, the revised version of the rating criteria will only be applied from the effective date of the regulatory change. VAOPGCPREC 3-2000 (Apr. 10, 2000), 65 Fed. Reg. 33,421 (2000); Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the new regulations may only be applied from the date they became effective forward. For the period through November 6, 1996, the Veteran's psychiatric disability must be rated under the older criteria, regardless of whether the new criteria are more favorable to his claim; while, for the period from November 7, 1996, forward, the Veteran's claim should be rated pursuant to the set of criteria which is more favorable to his claim. DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Prior to November 7, 1996, Diagnostic Code (DC 9411) provided that a 30 percent rating was warranted when there was definite impairment in the ability to establish and maintain effective and wholesome relationships with people, and the psychoneurotic symptoms resulted in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. 38 C.F.R. § 4.132, DC 9411 (1996). In a precedent opinion, VA's General Counsel concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9-93; 59 Fed. Reg. 4752 (1994). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104 (c). Further, prior to November 7, 1996, DC 9411 provided that a 50 percent rating required that the ability to establish or maintain effective or favorable relationships with people be considerably impaired, and that, by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels be so reduced as to result in considerable industrial impairment. The evidence indicates that, although the Veteran was largely employed throughout the period on appeal, he regularly left jobs on his own volition or due to circumstances related to his PTSD symptoms. He was limited in his ability to work, as he could only work jobs where he remained isolated from the public or he could control his environment. The Veteran's PTSD symptoms led to angry outbursts and inappropriate interactions with those in his workplace environment. Additionally, the Veteran's treatment records show consistent evidence of verbal abuse to those in his family and a lack of any close friendships. The Veteran has consistently experienced emotional numbing, avoidance, and isolation. The Board finds that these symptoms indicate that his ability to establish or maintain effective or favorable relationships with people is considerably impaired, and that, by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. The Board therefore finds that a minimum 50 percent disability rating is warranted throughout the period on appeal. The Board must then determine if a 70 percent disability rating is warranted for any period on appeal. Prior to November 7, 1996, DC 9411, a 70 percent rating required that the ability to establish and maintain effective or favorable relationships with people be severely impaired, and that the psychoneurotic symptoms be of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, DC 9411 (1996). The Board finds that the Veteran does not meet the criteria for a 70 percent disability rating. Although the Veteran had difficulty establishing and maintaining effective or favorable relationships, he had a close relationship with his family members. He was also close to his sister-in-law. In addition, he maintained employment for years at a time. The Board acknowledges the July 2015 private examiner's statement that the Veteran was educated in law enforcement but has been unable to obtain or maintain work in this field as a result of his PTSD. The Board finds this to be inaccurate. From 2007 through the current time, the Veteran worked security without more than a moderate degree of difficulty. Additionally, the Veteran spent many years prior to that working for Gillette Corporation in quality control and seven years in bicycle repair, showing that the Veteran is trained in other skills beyond law enforcement. The Board also acknowledges the Veteran's difficulty in controlling his anger and the necessary limitations in his working environments, but the limitations do not rise to the level of a severe impairment. During the period on appeal, he worked as a bicycle repairman from 1985 to 1990 until he received an injury. He then worked at Gillette Corporation from 1995 through 2007, when he took early retirement. Finally, he worked for the District Court in security from 2007 through 2012 until medical issues involving cancer treatment and appointments forced him to decrease his hours and finally stop working in October 2014. The Board acknowledges that the Veteran has asserted that his period of unemployment in 1990 was due to his PTSD symptoms; however, the Veteran has stated that he received Workman's Compensation due to an injury incurred while working at his father's bicycle shop. Although the Veteran has changed jobs three times in the period on appeal, he worked for significant periods of time in each job and left two due to medical issues or injuries. The Veteran has clearly been able to sustain employment. Based on a review of the claims file and the Veteran's ability to maintain employment, as well as his close relationships with his family, the Board finds that the ability to establish and maintain effective or favorable relationships with people is not severely impaired, and that the psychoneurotic symptoms are not of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. Therefore, a 70 percent disability rating is not warranted under the old rating criteria. The Board must then determine if the Veteran meets the requirements for a 70 percent disability rating under the revised rating criteria. The Board will only consider the period from the effective date of the revisions. Under the revised rating criteria, effective November 7, 1996, psychiatric disabilities are rated under a general rating formula for mental disorders. This regulation is, in part, as follows: A 50 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, this analysis is not limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In addition to the applicable rating criteria, in evaluating the Veteran's major depressive disorder, the Board has also considered the Global Assessment of Functioning (GAF) scores assigned, and the definition of those scores. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, they must be considered in light of the actual symptoms of the Veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM IV), a global assessment of function (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM IV, American Psychiatric Association (1994), pp.46-47; 38 C.F.R. §§ 4.125(a), 4.130. A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school. A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. The Veteran's records show GAF scores of 40, 60, and 75. As the Veteran's GAF scores range from better than mild symptoms to moderate symptoms to extremely severe symptoms, the Board finds that they are not a good measure of the Veteran's disability in this instance. The Board will focus on the Veteran's specific symptoms. After reviewing all the evidence of record, the Board finds that the Veteran's symptoms do not manifest to a degree that more nearly approximates the criteria for a 70 percent disability rating. The Veteran does not have occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Specifically, the Board acknowledges deficiencies in mood and occasional deficiencies in family relations, but the Board finds that the Veteran does not experience deficiencies with work, school, judgment, or thinking. Again, the Board notes that the Veteran has maintained three jobs throughout most of the thirty year period on appeal. The Veteran worked from 1985 through 1990 as a bicycle repairman and left due to an injury. The Veteran worked from 1995 through 2007 for Gillette Corporation and took early retirement and severance pay when the company was bought out by another and he would have to change positions. He then began working within the same year for the District Court, where he worked until he was forced to cut back hours and finally stop working due to his cancer surgery, treatment, and appointments. The Board acknowledges that the Veteran had occasional limitations in the workplace and occasional difficulties, but these do not present at a level that more nearly approximates the 70 percent rating criteria. Rather, these symptoms more nearly approximate occupational impairment, with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood and difficulty in establishing and maintaining effective work relationships as set forth in the 50 percent rating criteria. Regarding the Veteran's judgment and thinking, The June 2012 examiner noted that the Veteran's abstract thought, insight, and judgment were within normal limits. His thought process was goal directed and he had no preoccupations, obsessions, delusions, suicidal ideation, or homicidal ideation. He noted only mild problems with attention, concentration, and stamina. The March 2014 examiner noted that the Veteran's judgment, thinking, reasoning, and insight were within normal limits. The Veteran's thought process was goal-directed and his thought content showed no preoccupations, obsessions, delusions, suicidal ideation, or homicidal ideation. He exhibited no depersonalization, derealization, hallucinations, or illusions. The Board acknowledges that in June 2014 the private examiner noted impaired judgment; however, he appears to have based that opinion on incidents that occurred prior to the period on appeal and before the November 1996 revision of the rating criteria. The Board must consider only the period from November 1996 forward. The Board accepts that the Veteran has deficiencies in mood and family relations. The Veteran experiences irritability with outbursts. The Veteran's family relationships are described as generally good and very close, but they are affected by his irritability, emotional numbing, isolation, and avoidance. These symptoms however do not manifest to a degree that more nearly approximates the 70 percent rating criteria. The Board finds that the Veteran's symptoms are sufficiently addressed under the 50 percent rating criteria showing occupational and social impairment, with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, sleep impairment, avoidance, panic attacks, difficulty concentrating, irritability and angry outbursts, hypervigilance, flashbacks, mild memory loss, exaggerated startle response, anxiety, and depressed mood. The Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). As such, the Board notes that the Veteran experiences other symptoms that are not listed in the criteria, but may reflect the severity of his PTSD. These include, but are not limited to, the symptoms noted above, specifically flashbacks, avoidance, hypervigilance, and exaggerated startle response. Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment, with reduced reliability and productivity due to disturbances in motivation and mood. See Mauerhan, 16 Vet. App. 436. Based on the evidence of record, and after resolving all doubt in the Veteran's favor, the Board finds that the manifestations of the Veteran's PTSD more nearly approximate the criteria for a 50 percent disability rating throughout the period on appeal, and to this extent the appeal is granted. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2011). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's PTSD is manifested by occupational and social impairment, difficulty with social functioning, limitations as to types of employment, hypervigilance, exaggerated startle response, isolation, avoidance, sleep impairment with nightmares, and irritability with angry outbursts. These manifestations are contemplated in the applicable rating criteria. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations. Rather, his description of PTSD symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, the Board notes that the Veteran has a 100 percent disability rating for his metastatic carcinoma of the lungs. Due to the increased rating granted for PTSD in this decision, the Veteran's other disabilities are now rated at a combined rating of at least 70 percent. Therefore, TDIU must be considered for his remaining disabilities, and is addressed in the remand portion of the decision below. See Bradley v. Peake, 22 Vet. App. 280 (2008). ORDER Entitlement to a disability rating of 50 percent, but no higher, is granted throughout the period on appeal. REMAND TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which him education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). As noted above, the Veteran is currently receiving a 100 percent disability rating for metastatic carcinoma of the lungs. The Veteran, however, meets the schedular rating criteria for TDIU when considering only the remaining service-connected disabilities. Therefore, the Board must consider only the remaining disabilities, to include PTSD, vertigo, hearing loss, and tinnitus, when determining if TDIU is warranted. The Board finds that an opinion is required addressing only these disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran's claims file to a VA vocational rehabilitation counselor or other such appropriate person to provide the opinions requested below. The opinion provider is requested to evaluate and discuss the impact of the Veteran's service-connected disabilities without considering his metastatic carcinoma. The examiner should specifically address the Veteran's PTSD, vertigo, hearing loss, and tinnitus and offer an opinion as to the combined functional effect that these specific service-connected disabilities, without consideration of his age, metastatic carcinoma, or non-service- connected disabilities, have on the Veteran's ability to secure or follow a substantially gainful occupation. When addressing the functional limitations, the examiner should also consider the Veteran's educational and work experience. 2. Then, readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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 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). ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs