Citation Nr: 1234944 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 06-10 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to February 2003. He was retired from active duty based on years of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2010. A transcript of the hearing is associated with the claims file. The Veteran's case was previously before the Board in July 2011. At that time an additional issue of entitlement to service connection for gastroesophageal reflux disease (GERD) was also on appeal. The Board remanded that issue, along with the issue of entitlement to a TDIU rating, in July 2011. A March 2012 rating action granted service connection for GERD. The Veteran was provided notice of the rating action that same month. Although the one-year period to submit a notice of disagreement with the rating action has not yet expired, there is no indication in the claims file that the Veteran has expressed disagreement with any aspect of that grant. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (notice of disagreement (NOD) regarding disability compensation level separate from prior NOD regarding issue of service connection). Thus, the Board does not have jurisdiction to address any downstream element associated with the now service-connected GERD. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran retired from active duty in February 2003. He submitted his claim for service connection for a number of issues soon after in March 2003. He later submitted a claim seeking entitlement to a TDIU rating. A total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities with at least one disability rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2011). The Veteran was granted service connection for several disabilities by way of a rating decision dated in April 2004. None of the individual disability ratings exceeded 30 percent; however, the Veteran's combined service-connected disability rating was 80 percent. In addition, the Veteran was granted service connection for nephrolithiasis and assigned a 30 percent rating as well as hypertension with a 10 percent rating. The combined rating for these cardiovascular-renal disabilities was 40 percent. See 38 C.F.R. § 4.16(a). The Veteran was initially denied entitlement to a TDIU rating by way of a rating decision dated in July 2006. The basis for the denial was that the evidence of record did not support a conclusion that the Veteran's service-connected disabilities prevented him from obtaining and maintaining employment. The TDIU issue was again denied in November 2008. At that time, the RO determined that the Veteran did not meet the schedular requirements for consideration of a TDIU rating. The RO further determined that the Veteran's combined service-connected disabilities did not warrant referral for consideration of an extraschedular rating. The RO granted an increase in the rating for the Veteran's service-connected sleep apnea to 50 percent in May 2010. The increase was effective as of August 26, 2006. The RO issued a statement of the case in regard to the Veteran's TDIU issue in May 2010. Denial of a TDIU rating was confirmed on the basis that the evidence did not show that the Veteran was incapable of sedentary employment or that his service-connected disabilities caused him to be unable to secure or follow substantially gainful employment. The Board issued a decision that granted service connection for one disability and granted higher ratings for three others in July 2011. The AMC issued a rating decision to implement the Board's decision in August 2011. The Veteran was granted service connection for adjustment disorder, with depression, and given a 30 percent rating from March 1, 2003. His disability ratings for service-connected folliculitis, seborrheic dermatitis and lichen simplex chronicus of the scalp and varicose veins of the right and left foot were increased to 10 percent, with all three ratings effective from March 1, 2003. The Veteran's combined service-connected disability rating was now 90 percent from March 1, 2003, and 100 percent from August 28, 2006. The Veteran was afforded a VA examination in April 2012, which reviewed only the Veteran's skin and varicose veins disabilities. The examiner evaluated the three disabilities separately in determining whether any one of the three disabilities affected the Veteran's ability to obtain and maintain substantially gainful employment. The examiner noted the Veteran's usual occupation was as a financial analyst. The examiner concluded that the individual disabilities did not affect the Veteran's employability. The examiner provided an addendum to her report in June 2012. She listed most of the Veteran's service-connected disabilities and stated that there were no functional impairments from the disabilities in regard to the Veteran's occupation. She said the list of the disabilities was provided in the examination request provided to her. However, the examiner did not address the Veteran's recently service-connected adjustment disorder with depression in her assessment. Further, the examiner did not address one of the Veteran's main contentions in that the medications used to treat his service-connected disabilities had a severe impact on his ability to function. This was in addition to what he claimed as physical limitations from his disabilities. The examiner limited her findings to the period from October 7, 2003, to August 27, 2006, as per directions provided by the AMC. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A general listing of the Veteran's service-connected disabilities and a broad statement that they do not result in a functional impairment to the Veteran's occupation, without any rationale, is not adequate. Further, the examiner did not address the Veteran's contention of how his medications affect his ability to function, or work, in addition to the physical limitations from his disabilities. Also, his service-connected adjustment disorder disability was not considered. The AMC continued to deny the Veteran's claim for a TDIU rating and issued a supplemental statement of the case (SSOC) in June 2012. The AMC reviewed the period from October 7, 2003 to August 27, 2006, for consideration of whether a TDIU rating was in order in light of the Veteran having a combined 100 percent rating from August 28, 2006. The AMC determined that the Veteran's combined 90 percent rating met the criteria for consideration of a TDIU rating under 38 C.F.R. § 4.16(a) for the period prior to August 28, 2006. The Veteran's claim remained denied because the assessment was that his combined service-connected disabilities did not prevent him from securing or following substantially gainful employment for the period from October 7, 2003, to August 28, 2006. The AMC relied, in large part, on the opinion provided by the VA examiner in the examination report of April 2012 and addendum of June 2012. As already determined, the examination/addendum is inadequate. In regard to the adjudication of a TDIU rating after August 28, 2006, the Board notes that the fact that the Veteran currently receives (since August 28, 2006) a combined service-connected disability rating of 100 percent does not specifically negate entitlement to a TDIU since that date. See Bradley v. Peake, 22 Vet. App. 280 (2010); 38 U.S.C.A. § 1114(s) (West Supp. 2011). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an appropriate VA examination to determine the effect of his service-connected disabilities on his employability. The claims file, and a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and a notation to the effect that this review has taken place should be made in the evaluation report. The RO should provide the examiner with a complete list of the Veteran's service-connected disabilities. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment as a result of a service-connected disability(ies) at any time during the appeal-e.g., for both time periods (prior to August 28, 2006) and from August 28, 2006. If the examiner finds the Veteran to be unemployable as a result of a service-connected disability(ies) for either (or both) time periods, the examiner should set forth in the examination report the specific service-connected disability(ies) that render the Veteran unemployable. In answering these questions, the examiner should consider the Veteran's occupational experience and education-as well as the Veteran's contentions that his service-connected disabilities prohibit him from obtaining and maintaining substantially gainful employment and that the combination of the many medications he must take for his disabilities also has a severe impact on his ability to function. A complete rationale for the opinions rendered should be provided. 2. After the requested medical opinion evidence is obtained, the report should be reviewed to ensure it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, it should be returned to the examiner. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, re-adjudicate the TDIU issue on appeal. If any portion of the benefit sought is not granted, the Veteran and his representative must be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. 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 RO. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States 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. 2011). _________________________________________________ THERESA M. CATINO 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 your appeal. 38 C.F.R. § 20.1100(b) (2011).