Citation Nr: 1806473 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-24 179A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana 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 WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1982 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana. In October 2017, the Veteran testified via video before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND TDIU The Veteran seeks a TDIU. Total disability will be considered to exist 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. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). In the present case, the Veteran has been granted service connection for sleep apnea, with a 50 percent disability rating; unspecified depressive disorder, with a 30 percent rating; post-operative residuals of left hallux limitus, with a 10 percent rating; post-operative residuals of right hallux limitus, with a 10 percent rating, and; hypertension, with a 10 percent rating. His combined rating is 80 percent. Thus, he meets the schedular criteria for a TDIU. He has not, however, been afforded a VA examination and/or medical opinion which address the effects of his service-connected disabilities in their entirety on his employability. The Board finds the evidence of record sufficient to trigger VA's obligation to afford the claimant a VA medical examination or opinion. 38 U.S.C. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that in a December 2016 VA sleep disorder examination, a VA physician opined that the Veteran's sleep apnea would not prohibit work which was either sedentary or involved physical labor. The examiner did not, however, appear to consider the Veteran's other service-connected disabilities. Additionally, the Veteran began VA vocation rehabilitation, but was removed from the program due to unsuitability, according to his October 2017 hearing testimony. Review of a June 2015 VA vocation rehabilitation assessment indicates that a VA counselor determined the Veteran's medical issues would make working "infeasible"; however, this assessment was made based on both service-connected and nonservice-connected disabilities. Specifically, the counselor noted the Veteran had significant impairment of the back and bilateral knees due to nonservice-connected disabilities which resulted in chronic pain and impaired mobility. Finally, the Veteran was initially denied Social Security disability benefits in 2011, but reapplied in 2015 and was approved, according to records received from the Social Security Administration. In sum, this evidence establishes that the Veteran has significant obstacles to employment due to both service-connected and nonservice-connected disabilities. As such, remand is required to determine if the Veteran's service-connected disabilities alone render him unemployable. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a vocational evaluation by a VA vocational or similar specialist, if possible, to assist in determining the current functional effect of the service-connected disabilities on the Veteran's ability to obtain or maintain substantially gainful employment. The entire claims file, to include records on VBMS and Virtual VA, should be made available to the examiner. The VA examiner should comment on the functional effect of the Veteran's service-connected disabilities on the ability to work (disregarding the effects of any disabilities that are not service connected), indicating what functions or types of employment would be inconsistent with or would be precluded by the service-connected disabilities, and what types of employment, if any, would remain feasible despite the service-connected disabilities. The examiner is reminded the Veteran has been awarded service connection for sleep apnea, unspecified depressive disorder, post-operative residuals of right and left hallux limitus, and hypertension. His combined rating is 80 percent. The VA examiner should set forth a rationale underlying any conclusions drawn or opinions expressed. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2014). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).