Citation Nr: 1302363 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 05-29 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow REMAND The Veteran had active military service from March 1978 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in which service connection for vision impairment of the right eye secondary to a cyst, an increased disability rating for service-connected recurrent systemic sebaceous cysts, and entitlement to a TDIU rating were denied. In September 2007 and June 2009, the Board remanded the Veteran's claims for additional development. In June 2009, the Board issued a decision denying service connection for a right eye disability secondary to service-connected sebaceous cysts. The Board also remanded the claims for entitlement to an increased disability rating for service-connected sebaceous cysts and TDIU. In March 2011, the Board issued a decision denying those claims. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By memorandum decision issued in May 2012, the Court vacated and remanded that portion of the Board's March 2011 decision that denied entitlement to a TDIU. As for the issue of entitlement to an increased disability rating for service-connected sebaceous cysts, the Court found that the Veteran raised no allegation of error on appeal with regard to that matter. Consequently, the Court considered that matter to have been abandoned on appeal. As a result, the only issue remaining on appeal for Board consideration at this time is the claim for entitlement to a TDIU. In its May 2012 decision, the Court found that the Board erred by relying on an inadequate medical opinion provided by the examiner who conducted May 2005 VA examinations. The Court found the VA examiner's medical opinions as to the Veteran's employability to be inadequate because she failed to support her conclusions with any analysis or explanation (citing to Stefl v. Nicholson, Vet. App. 120, 124-25 (2007), and Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008)), especially in light of the Veteran's report that the service-connected cysts interfered with his ability to work and specifically his 2007 testimony that dust, dirt, and sun exposure aggravated his skin disability by causing more cysts to appear. The Court stated that, given that the critical issue is entitlement to a TDIU, the examiner's conclusion that the Veteran's skin disability did not preclude him from being employable was not adequate because her report failed to provide any analysis regarding the Veteran's complaint that his work environment aggravates his medical condition. Consequently, the Court remanded the Veteran's claim to the Board for further development. Given the Court's decision, another examination is required. As part of this examination, the examiner should provide an opinion as to whether the Veteran's service-connected disabilities of sebaceous cysts (evaluated as 50 percent disabling), limitation of motion of the cervical spine (evaluated as 10 percent disabling), tender scar on the right lower lip (evaluated as 10 percent disabling), tender scar on the left upper lip (evaluated as 10 percent disabling), and tender scar on left chin (evaluated as 10 percent disabling), either solely or in conjunction with each other, make the Veteran unable to secure or follow a substantially gainful occupation. The examiner must specifically take into consideration the Veteran's employment history, and educational and vocational attainment. In providing an opinion, the examiner must address whether the evidence, including the Veteran's lay statements regarding his work situation relative to his disabilities, demonstrates that the Veteran's employment environment aggravates his service-connected sebaceous cysts by causing more of them to appear, which in turn affects his ability to follow a substantially gainful occupation. The examiner must provide a complete explanation of the reasons for all opinions given. Finally, the Veteran's treatment is apparently provided through the VA Medical Centers in Poplar Bluff and St. Louis, Missouri. VA treatment records associated with the claims folder are dated to August 2010. Thus, pertinent medical treatment records since August 2010 or any other relevant VA treatment records identified through the CAPRI records system, should be obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file his medical records from the VA Medical Centers in Poplar Bluff and St. Louis, Missouri from August 2010 to the present. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. The Veteran should be informed of an inability to locate records in accordance with 38 C.F.R. § 3.159. 2. Thereafter, schedule the Veteran for an examination to be conducted with regard to the issue of entitlement to TDIU. The examiner should review the Veteran's claims folder, including a copy of this remand. The examiner should elicit a detailed history regarding the Veteran's employment and educational and vocational attainment. After examining the Veteran, the examiner should provide an opinion as to whether the Veteran's service-connected disabilities of sebaceous cysts (evaluated as 50 percent disabling), limitation of motion of the cervical spine (evaluated as 10 percent disabling), tender scar on the right lower lip (evaluated as 10 percent disabling), tender scar on the left upper lip (evaluated as 10 percent disabling), and tender scar on left chin (evaluated as 10 percent disabling) combine to make him unable to secure or follow substantially gainful employment consistent with his educational and occupational experience. In providing such an opinion, the examiner must specifically address whether the evidence, including the Veteran's lay statements, demonstrates that the work environment as a farm laborer (which requires exposure to dust, dirt, and sun) aggravated either his service-connected sebaceous cysts and/or his service-connected limitation of motion of the cervical spine such that either one or both prevent him from working in that occupation. The examiner should also provide an opinion on the question of whether any substantially gainful occupation would be precluded by service-connected disability given the Veteran's education level and occupational training and experience. A complete explanation for the reasons for all opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth in detail and explained in the context of the record. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Thereafter, the Veteran's claim for entitlement to a TDIU should be readjudicated. If the benefit sought is not granted, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court. 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).