Citation Nr: 0003135 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-10 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active military service from August 1966 to February 1967. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Reno Regional Office (RO) February 1998 rating decision which denied a claim for entitlement to TDIU due to service- connected disability. REMAND 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 or she has one service-connected disability rated 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). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service- connected disability shall be rated totally disabled. If a veteran is unemployable due to service-connected disability, and the percentage requirements of 38 C.F.R. § 4.16(a) are not met, the case should be submitted to the Director of the Compensation and Pension Service for consideration of an extra-schedular rating. 38 C.F.R. § 4.16(b). In determining whether a veteran is entitled to TDIU, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this regard, the Board observes that the veteran's sole service-connected disability is a generalized anxiety disorder, and that it is currently rated 50 percent disabling. It is also noted that the veteran was granted a VA nonservice-connected disability pension in 1976 for spondylosis of the lumbar spine and a nervous disability then diagnosed as depressive neurosis. The veteran contends that the severity of his service- connected generalized anxiety disorder has increased. He further contends that his generalized anxiety disorder interferes with his ability to secure substantially gainful employment, and that this is demonstrated by the fact that he has not worked since the early 1970s. Thus, he asserts that he is entitled to TDIU due to service-connected disability. The Board finds that the veteran's claim for entitlement to TDIU is well grounded pursuant to 38 U.S.C.A. § 5107(a), in that it is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of an increased disability is sufficient to establish a well- grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Here, the veteran's contentions that his generalized anxiety disorder has increased in severity and rendered him unemployable (within the competence of a lay party to report), is sufficient to conclude that his claim is well grounded. Once it has been determined that a claim is well grounded, the VA has a duty to assist in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107(a). The U.S. Court of Appeals for Veterans Claims has held that in the case of a TDIU claim, the duty to assist requires that the VA obtain an examination which includes an opinion as to what effect the veteran's service-connected disability has on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (1999). In this case, the veteran was last afforded a VA psychiatric examination in January 1997. At that time, he reported that he had been unable to work since 1975. However, the Board observes that the examiner who conducted the examination did not provide an opinion as to what effect the veteran's service-connected generalized anxiety disorder had on his ability to work. VA needs to obtain an examination which assesses what effect the veteran's service-connected generalized anxiety disorder has on his ability to maintain gainful employment. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to his claim, the case is REMANDED for the following action: 1. The RO should obtain names and addresses of all medical care providers who treated the veteran for service- connected generalized anxiety disorder. On securing any needed releases, copies of all VA, military, and private treatment records (not already of record) should be secured for association with the claims folder. 2. The veteran should be scheduled for a VA psychiatric examination to assess the impact his service-connected generalized anxiety disorder has on his ability to maintain gainful employment. The claims folder must be made available to the examiner for review in conjunction with the examination. All indicated testing should be conducted. The examiner should provide an opinion as to the degree of interference with ordinary activities, including the ability to obtain and maintain gainful employment, caused solely by the veteran's service-connected generalized anxiety disorder. The examiner should also distinguish any symptoms attributable to any nonservice- connected psychiatric disorder found. If certain symptoms cannot be distinguished from one disorder to another, it should be so indicated. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the above has been accomplished. If any development is incomplete, appropriate remediation should be implemented. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any additional development deemed appropriate, the RO should determine whether manifestations of the veteran's service-connected generalized anxiety disorder render him unemployable. The RO should then re- adjudicate the issue of entitlement to TDIU due to service-connected disability. If the veteran is found to be unemployable due to his service-connected generalized anxiety disorder, but the percentage requirements of 38 C.F.R. § 4.16(a) are not met, the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the veteran and his representative an opportunity to respond. The case should then be returned to the Board for further consideration. The veteran has the right to submit additional evidence and argument on the matter remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J. F. Gough Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the U.S. 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) (1999).