Citation Nr: 0812202 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-07 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran served on active duty from September 1963 to June 1983. When this matter was last before the Board of Veterans' Appeals (Board) in January 2007, it was remanded to the Department of Veterans' Affairs (VA) New Orleans, Louisiana, Regional Office (RO) through the Appeals Management Center (AMC) for referral to the VA Director of Compensation and Pension Services for consideration of entitlement to a total rating based on individual unemployability on an extraschedular basis. Following the referral, a supplemental statement of the case was issued in November 2007, and the case was returned to the Board. At the August 2006 hearing before the Board, the veteran asserted claims for increased ratings for his service- connected right ankle disability and his service-connected seizure disorder. They are referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The last supplemental statement of the case pertaining to the veteran's claim was issued in November 2007. In January 2008, a medical opinion dated in January 2008 written by Raoul P. Rodriguez, Jr., M.D. was received at the AMC. In this opinion, Dr. Rodriguez first noted that the veteran has had several total ankle replacements, including one in April 2007, and a "revision" in December 2007. Dr. Rodriguez described the "severe restrictions" caused by the veteran's right ankle disability and concluded that the veteran "should be considered unemployable due to his ankle disability." Neither the veteran nor his representative included a waiver of consideration of that evidence by the RO. This evidence addresses the severity of the service-connected right ankle disability and pertains to the effect that condition has on the veteran's employability. It is clearly relevant to the issue of TDIU and must be considered in addressing that issue. A supplemental statement of the case will be issued and furnished to an appellant and his representative, following the receipt of additional pertinent evidence after a statement of the case or the most recent supplemental statement of the case has been issued and before the appeal is certified and transferred to the Board. 38 C.F.R. § 19.37(a). It is incumbent upon the RO through the AMC to review the evidence and issue an appropriate supplemental statement of the case. The medical statement from Dr. Rodriguez references additional revisions of the total right ankle replacement, as recently as December 2007. The next most recent medical evidence in the claims file is dated in April 2003. Clearly there are pertinent medical records that have not been sought. It is incumbent upon VA to assist the veteran in obtaining treatment records and medical evidence, the location of which has been specifically identified in order to fully determine the nature and severity of any disability at issue. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. Finally, the medical opinion offered by Dr. Rodriguez suggests that there has been an increase in the severity of the veteran's right ankle disability since the last VA examination in April 2003, and further suggests that this increase may have had a significant effect on the veteran's employability. VA's duty to assist the claimant in the development of his claims includes obtaining a medical opinion whenever such an opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4), 4.1. Consequently, the necessity for appropriate examination(s) is shown for the proper assessment of the veteran's claim. Accordingly, the case is REMANDED for the following action: 1. After obtaining all necessary information, authorizations, and releases, obtain copies of all treatment records identified by the veteran, regardless of the source, from any health care provider who has treated the veteran for the right ankle disorder at issue since April 2003, the date of the most recent treatment records in the claims file. Specifically, obtain copies of any medical records, statements, or opinions from the veteran's physician, Dr. Raoul P. Rodriguez, Jr., M.D., and medical records of the revisions of the total right ankle replacement that were reportedly done in April 2007 and December 2007. All records obtained should be associated with the claims file. 2. After completion of the foregoing, schedule the veteran for a VA orthopedic examination to determine the current severity of his service-connected right ankle disability, characterized as a right total ankle arthroplasty. The claims file, a copy of this remand, and any additional evidence obtained pursuant to the requests above, should be made available to the examiners for review. Any indicated studies should be performed. The examiner should undertake range of motion studies for the right ankle, noting the exact measurements for flexion and extension, specifically identifying any excursion of motion accompanied by pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should provide a specific opinion as to the extent to which the veteran's right ankle disorder renders him unemployable. A complete rationale must be provided for any opinion expressed. 3. Thereafter, review the claims file to ensure that all of the foregoing requested development has been completed, and pursue any development required by the record at hand, including further medical review or examination. 4. After undertaking any development deemed essential in addition to that specified above, as provided by 38 C.F.R. §§ 3.321(b)(1) and 4.16(b) (2007), refer the appeal to the Director, Compensation and Pension Service, for extra-schedular consideration on the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities. 5. Thereafter, readjudicate the claim now under appeal, to include consideration of all evidence received since the most recent supplemental statement of the case. If the determination is not a full grant of benefits sought, namely, the grant of a total rating based on individual unemployability due to service-connected disabilities, furnish the veteran with a supplemental statement of the case and afford him an opportunity to respond before the case is returned to the Board. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for service connection and result in a denial. 38 C.F.R. § 3.655 (2007). The appellant 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).