Citation Nr: 1605908 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 14-23 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to May 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to a TDIU pursuant to a claim received on August 1, 2011. During the rating period on appeal, from August 2, 2010, service connection has been established for prostate cancer, posttraumatic stress disorder, diabetes mellitus, bilateral hearing loss, tinnitus, and erectile dysfunction. His combined evaluation for compensation was 100 percent prior to March 1, 2012, and 90 percent from March 1, 2012. He has been in receipt of special monthly compensation under 38 U.S.C. § 1114(k) from July 14, 2008. If a veteran has a service-connected disability rated as total (i.e. TDIU based on a single disability), and has additional service-connected disability or disabilities independently ratable at 60 percent or more, then he warrants entitlement to special monthly compensation under 38 U.S.C. § 1114(s) (2015). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) and Bradley v. Peake, 22 Vet. App. 280 (2008). As such, although a schedular 100 percent rating was assigned for prostate cancer from June 18, 2008 through February 2012, VA must still consider whether, at any time from August 2, 2010, the Veteran warranted a TDIU based on a single disability independent of additional service-connected disability or disabilities independently ratable at 60 percent or more. As such, the rating period for consideration on appeal is from August 2, 2010. 38 C.F.R. § 3.400 (2015). The Veteran was last provided with a VA examination with respect to the severity of his various disabilities in May 2012, nearly 4 years ago. However, the Veteran and his representative contend that the May 2012 examiner only addressed the impact that each individual service-connected disability had on his employability, rather than the aggregate impact of all the Veteran's service-connected disabilities on his employability. Although the passage of time alone does not require an updated examination, see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007), in this case, the Board finds that a more contemporaneous and complete examination conducted by a vocational specialist is needed to properly assess the Veteran's current capacity for employment. See Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an evaluation by vocational specialist to determine the impact that all of his service-connected disabilities, in combination, have on his employability. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. The claims file must be made available for review in conjunction with the evaluation. The examiner must elicit from the Veteran and record, for clinical purposes, a full work and educational history. Based on a review of the claims file, the examiner must provide an opinion as to the functional effects that the Veteran's service-connected disabilities, considered in combination, have on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. When providing this opinion the examiner should not consider the effect of age or any nonservice-connected disabilities. A complete rationale must be provided for any opinion offered. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2015). 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, then provide a supplemental statement of the case to the Veteran and his representative and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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 2014). _________________________________________________ U. R. POWELL 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).