Citation Nr: 1118085 Decision Date: 05/11/11 Archive Date: 05/17/11 DOCKET NO. 09-25 069 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (T/R). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The Veteran had active service from July 1955 to July 1958, and from August 1961 to August 1965. This appeal to the Board of Veterans Appeals (Board) arises from an August 2006 rating action that denied a T/R. In August 2010, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. The VA will notify the appellant when further action is required. REMAND Considering the record in light of the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA) (38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010)), the Board finds that all notice and development action needed to render a fair decision on the claim on appeal has not been accomplished. The Veteran contends that his service-connected disabilities render him unemployable. At the August 2010 Board hearing, he testified that pain, weakness, and paresthesias from his right knee amputation as well as other disabling effects from diabetes mellitus (DM) prevent him from walking and standing, and impair his ability to obtain and perform anything other than marginal employment. Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). When a veteran alleges that a service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (A veteran is entitled to a new examination after a 2-year period between the last VA examination and his contention that a disability had increased in severity). The VA is required to schedule an examination whenever evidence indicates that there has been a material change in disability or that the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2010); see Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Inadequate medical evaluation frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). As it is unclear how the veteran's service-connected disabilities impair him functionally since his last VA examination in March 2006, the Board finds that the duty to assist requires that he be afforded a new VA examination to obtain clinical findings pertaining thereto prior to adjudicating the T/R claim on appeal. Under the circumstances, the Board finds that this case must be remanded to the RO to obtain such examination to resolve the issue on appeal. The Veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, shall result in denial of his claim. See 38 C.F.R. § 3.655(b) (2010). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO should obtain and associate with the claims folder a copy of the notice of such examination sent to him by the pertinent VA medical facility. On remand, the RO should also obtain copies of all records of outstanding treatment and evaluation of the Veteran for his service-connected DM, right below-knee amputation associated with cellulitis and gangrene, left lower extremity peripheral neuropathy, and erectile dysfunction at the Nashville, Tennessee VA Medical Center (VAMC), to include primary care physician records, from May 2006 up to the present time. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration thereof, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Under 38 C.F.R. § 3.159(b), efforts to obtain Federal records should continue until either the records are received or notification is provided that further efforts to obtain such records would be futile. See 38 C.F.R. § 3.159(c)(1). The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the agency of original jurisdiction of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the agency of original jurisdiction should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO via the AMC for the following action: 1. The RO should obtain from the Nashville, Tennessee VAMC copies of all records of outstanding treatment and evaluation of the Veteran, to include primary care physician records, for DM, right below-knee amputation associated with cellulitis and gangrene, left lower extremity peripheral neuropathy, and erectile dysfunction from May 2006 up to the present time. In requesting these records, the RO should follow the current procedures prescribed in 38 C.F.R. § 3.159. All records and/or responses received should be associated with the claims folder. 2. If any records sought are not obtained, the RO should notify the appellant and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses received have been associated with the claims folder to the extent possible, the RO should arrange for the Veteran to undergo a VA examination to determine how his service-connected DM, right below-knee amputation associated with cellulitis and gangrene, left lower extremity peripheral neuropathy, and erectile dysfunction impair him industrially. The entire claims folder must be made available to the examining physician, and the examination report should include discussion of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail and correlated to specific diagnoses. The doctor should provide an assessment as to the combined effect of the veteran's service-connected DM, right below-knee amputation associated with cellulitis and gangrene, left lower extremity peripheral neuropathy, and erectile dysfunction upon his employability. He should specifically review the evidence in the claims folder and render an opinion for the record as to whether, on the basis of the available evidence, it is at least as likely as not (i.e., there is at least a 50% probability), or it is not at least as likely as not (i.e., there is less than a 50% probability) that those service-connected disabilities alone, considered apart from the effects of any non-service-connected disabilities, impair him sufficiently to render him unable to secure or maintain a substantially-gainful occupation. The physician is reminded that pertinent VA regulations provide that age may not be considered as a factor in evaluating service-connected disabilities, and that unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a T/R. All examination findings, together with the complete rationale for the comments and opinions expressed, should be set forth in a printed (typewritten) report(s). 4. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims folder a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority, to include the propriety of referral for extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b)(1) and 4.16(b). If the Veteran fails to report for the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. 7. Unless the claim on appeal is granted to the veteran's satisfaction, the RO must furnish him and his representative an appropriate Supplemental Statement of the Case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant needs take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeals for Veterans Claims (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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).