Citation Nr: 1127323 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 04-42 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. This matter was first addressed as part of decision/remand issued by the Board of Veterans' Appeals (Board) in March 2010. As noted in the INTRODUCTION section, the Board pointed out that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, it was observed that the appellant seemed to raise this issue in the course of VA examinations conducted in March 2006 and May 2009. Therefore, the Board determined in March 2010 that the TDIU issue had been raised by the record, and as such was properly before the Board. The Board remanded the claim in March 2010 so that additional development of the evidence could be conducted. 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 As discussed in the Board's March 2010 remand, it was determined that the Veteran had raised the issue of TDIU in the course of VA examinations conducted in March 2006 and May 2009. At that time he informed the examiner that he was unemployed as a result of his service-connected PTSD. The Board noted at that time that the record was devoid of a full medical opinion as to whether the Veteran was unable to secure and maintain gainful employment in light of all his service-connected disabilities. It was also noted that the Veteran was also service-connected for shell fragment wound residuals (rated noncompensably) of the left foot, right leg, and chest. As such, the Board's March 2010 remand directed, inter alia, that the following be completed: 1. The RO should schedule the Veteran for an appropriate VA medical examination(s) to determine the effect of his two current service-connected disabilities on his employability. The examiner should generally address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. (emphasis added) The claims file, to include a copy of this REMAND, must be made available to and thoroughly reviewed by the examiner in connection with the examination. Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to whether it is at least as likely as not that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities. (emphasis added) In doing so, the examiner also must consider the Veteran's education, experience, and occupational background in determining whether he is unable to secure or maintain gainful employment in light of his service-connected disabilities (standing alone). (emphasis added) The examination report must include a complete rationale for all opinions and conclusions expressed. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. In pertinent part, the Veteran was afforded a VA PTSD examination in December 2010. A diagnosis of PTSD was diagnosed. The examiner commented that as a result of his PTSD the Veteran suffered from a moderate degree of impairment in social functioning and a moderate degree of impairment in occupational functioning. His overall level of disability is moderate. In regard to his unemployability, it is my opinion that his symptoms would result in variability in performance and variable difficulty in interacting with others. As such, he would have decreased reliability and performance. His [PTSD] is having a moderate impact on his employability. While the VA examiner in December 2010 opined that, in essence, the Veteran's PTSD had a "moderate impact on his employability," he failed to directly address and respond to the precise question for which an opinion was sought by the Board in March 2010. Namely, the examiner did not render an opinion to the question of "whether it is at least as likely as not that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities." (emphasis added) As such, the medical question concerning the effect of the Veteran's service-connected disabilities-i.e., his service connected PTSD and his service connected residuals of shell fragment wounds to the left foot, right leg, and chest-on his employability has not been answered. Hence, the development ordered in March 2010 appears to not have been sufficiently accomplished. A remand by the Board confers on the Veteran the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Thus, additional action is therefore required. The Board also ordered the following development in March 2010: 5. If entitlement to TDIU is denied, the RO must notify the Veteran of his appellate rights on the issue, and inform him that to vest the Board with jurisdiction over the issue, a timely Substantive Appeal must be filed. 38 C.F.R. § 20.202 (2009). If the Veteran perfects the appeal as to this issue, the RO should undertake all appropriate action. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. Review of the post-remand evidentiary record shows that the issue of entitlement to TDIU was addressed, and denied, by the AMC in March 2011. See the March 2011 Supplemental Statement of the Case (SSOC). The cover sheet, as part of the SSOC, informed the Veteran that "It is not a decision on any new issues, but is intended to inform you of any material changes in, or additions to, the information contained in the 'Statement of the Case' (SOC) that we previously sent you." The Board notes that the previously sent SOC, mailed to the Veteran in November 2004, did not include consideration of the TDIU claim. Also, and of significant note, the SSOC did not inform the Veteran, as mandated by the instructions included as part of the Board's March 2010 remand, of his "appellate rights." Specifically, the appellant was not provided with a Substantive Appeal (VA Form 9), nor was he informed of the requirements for completing such a form. See 38 C.F.R. §§ 20.202, 20.302 (2010). This deficiency mandates further development. Stegall, supra. Therefore, this issue is again REMANDED to the RO for the following action: 1. The RO should send the Veteran the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed to complete the form, and to thereafter return it. 2. Thereafter, the RO should afford the Veteran all required VA examinations to determine the nature and extent of the impact the Veteran's service-connected disabilities have on his employability. The examiners should generally address the extent of functional and industrial impairment due to the Veteran's service-connected PTSD and service connected shell fragment residuals of the left foot, right leg, and chest. The claims file, to include a copy of this REMAND, must be made available to and thoroughly reviewed by the examiners in connection with the examination. Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to whether it is at least as likely as not that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities. In doing so, the examiners also must consider the Veteran's education, experience, and occupational background in determining whether he is unable to secure or maintain gainful employment in light of his service-connected disabilities (standing alone). The examination report must include a complete rationale for all opinions and conclusions expressed. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale should be given for all opinions and conclusions expressed in a typewritten addendum report. 3. The Veteran is hereby notified that it is his responsibility to report for a VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, the RO must review the claims folder and ensure that the foregoing development actions, as well as any other indicated development, have been conducted and completed in full. If the response is deficient in any manner, the RO must implement corrective procedures. Stegall, supra. 5. The RO should adjudicate the TDIU claim on a de novo basis, including consideration of whether the Veteran meets the criteria for an extraschedular evaluation under either 38 C.F.R. § 4.16(b) and § 3.321(b)(1). If the issue is denied, the RO must notify the Veteran of his appellate rights on the issue, and inform him that to vest the Board with jurisdiction over the issue, a timely Substantive Appeal must be filed. The Veteran must be provided with a VA Form 9 in which to use in the event he wishes to appeal. See also 38 C.F.R. §§ 20.202, 20.302. If the Veteran perfects the appeal as to this issue, the RO should undertake all appropriate action. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. 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 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. 2010). _________________________________________________ L.J. BAKKE Acting 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) (2010).