Citation Nr: 1804036 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-14 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from November 2002 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction of the case has subsequently transferred to the RO in Houston, Texas. In August 2017, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is unable to maintain gainful employment due to severe symptoms he experiences due to his service-connected panic disorder and side effects from medications. Total disability is considered to exist when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). If there is only one disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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(a). On his October 2011 VA Form 21-8940 and during his August 2017 Board hearing, he testified that he last worked at a correctional facility as a contractor for the sheriff's department until he was let go in September 2008. He stated he was let go from his job because of his mental health and was considered to pose a risk for himself and others at work. He stated he experienced several panic attacks daily and the severity of the attacks is such that he feels as if he was having heart attacks. An April 2012 VA examination report noted that the Veteran appeared extremely anxious and endorsed four panic attacks daily, with irritability, and homicidal ideation without intent or plan. He continued to be unemployed and had to withdraw from multiple classes in college secondary to panic attacks. Based on the foregoing, the Board finds there is ample evidence that the Veteran may be unemployable due to his service-connected disabilities. However, the record includes no medical opinion addressing the effects of the Veteran's service-connected disabilities on his employability. The Board therefore finds that the VA has yet to properly develop the TDIU claim. Additionally, the April 2012 VA mental disorders examination report notes that the Veteran has been unemployed and is living on his Social Security and VA income. It appears that the Veteran has been in receipt of disability benefits from the Social Security Administration (SSA). However, there is no indication that the AOJ has ever requested the Veteran's complete Social Security records from the SSA. Therefore, attempts to identify and obtain outstanding SSA records must be made before a decision is made in this case. While the case is on remand status, the RO should make another attempt to request the Veteran to return a VA Form 21-4192 to be completed by his former employer(s), to address his employment nature (to include any accommodation due to his service-connected disabilities) and income status. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be provided with a VA Form 21-4192 to be completed by his former employer(s) during the period in question, to address his employment nature (to include any accommodation due to his service-connected disabilities) and income status. 2. Identify and obtain any outstanding Social Security disability benefits records, including all medical records and decisional documents. All attempts to obtain the records should be documented in the file. If no records are found and additional requests for SSA records would be futile, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 3. Obtain any outstanding, pertinent VA medical records, to specifically include records of all VA treatment dated from January 2014 to the present, from the VA Medical Center in San Antonio, Texas. All records and/or responses received should be associated with the claims file. All attempts to obtain these records must be documented in the claims file. 4. Thereafter, schedule the Veteran for an examination to determine whether his service-connected disabilities (panic disorder with depression, tinnitus, and left ear hearing loss) result in unemployability. Based on a review of the claims file, the examiner must provide an opinion on the impairment in occupational functioning caused solely by the Veteran's service-connected disabilities, irrespective of age and any nonservice-connected disabilities. In this regard, the examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. The opinion must be based on the review of the claims file, and a complete rationale must be provided for any opinions expressed. 5. After completing the above, adjudicate the remaining issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).