Citation Nr: 1237198 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-13 301A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disorder, claimed as a herniated disc of the lumbar spine, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to March 2, 2009. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney At Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972. These matters come before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge in December 2010. A transcript of the hearing is of record. When this matter was initially before the Board in March 2011, the Board dismissed a claim for entitlement to dependency allowance for the Veteran's ex-spouse for the period of April 17, 1998 to May 1, 1999; granted increased ratings for PTSD; denied increased ratings for diabetes mellitus, type II; granted service connection for coronary artery disease; and, granted entitlement to a TDIU as of March 2, 2009. A claim for entitlement to service connection for a low back disorder was remanded for procedural development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2011 Joint Motion to Remand, the Court vacated and remanded the portion of the Board's decision regarding the issue of entitlement to a TDIU, prior to March 2, 2009. Development as to the low back disorder claim was conducted, although the Board finds that the Remand instructions were not adequately completed. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Low Back Disorder- The Veteran is claiming service connection for a low back disorder, claimed as a herniated disc of the lumbar spine, to include as secondary to service-connected diabetes mellitus, type II. An opinion regarding the relationship between the Veteran's low back disorder and his service-connected diabetes mellitus was requested pursuant to the March 2011 BVA Remand. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed a January 2012 VA examination, undertaken to address the etiology of the Veteran's low back disorder. However, the Board finds that the medical examination does not contain sufficient detail to decide the claim on appeal. The Court has held that where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although the January 2012 VA examiner addressed the direct relationship between the Veteran's service-connected diabetes mellitus and his low back disorder, the examiner did not adequately discuss whether the Veteran's service-connected diabetes mellitus aggravated his low back disorder. 38 C.F.R. § 3.310(b). Specifically, no aggravation opinion was provided. Thus, on remand, the Veteran should be accorded a pertinent VA examination that provides such an opinion with supporting rationale. TDIU- The Veteran has already been awarded a TDIU, effective March 2, 2009. He argues that the effective date should be as early as September 2005. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. For the period prior to March 2, 2009, the Veteran's service connected disabilities are rated as follows: PTSD (50 percent), diabetes mellitus (10 percent prior to February 28, 2006, and 20 percent disabling from February 28, 2006), and coronary artery disease (10 percent). He thereby does not meet the schedular requirements for assigning a total disability evaluation based on individual unemployability under 38 C.F.R. § 4.16(a). However, for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. In this regard, the Veteran essentially argues that he meets the requirement of "one 60 percent disability" since September 6, 2005, because he is now service-connected for coronary artery disease, posttraumatic stress disorder (PTSD), and type II diabetes mellitus since that time and these all stem from a common etiology or accident. The Board does not agree. It is true that the Veteran's diabetes mellitus and coronary artery disease are conceded to have resulted from presumed herbicide exposure. A tenable argument could be made that these conditions stem from a common etiology, i.e., herbicide exposure. There is no evidence, however, supporting that the Veteran's PTSD stems from herbicide exposure. The Veteran's PTSD was found to be related to confirmed in-service stressors involving an enemy attack where he was stationed. In other words, his PTSD stems from an entirely different accident or etiology. The fact that all these events occurred while the Veteran was stationed in Vietnam has been considered. This argument negates the very fabric of 4.16(a). Indeed, if such logic were to be applied (mere presence in Vietnam) all disabilities could be ultimately combined together as stemming from a common etiology - being in the military. The Board finds no basis for assigning a combined rating under such a basis. Thus, at this juncture, the Board finds that the Veteran does not meet the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), prior to March 2, 2009. Even so, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). An August 2012 opinion from E.J.C., a vocational consultant, supports this argument. The Board itself, however, cannot assign an extra-schedular rating in the first instance. See Thun v. Shinseki, 572 F.3d 1366 (2009). Although Thun only dealt with ratings under § 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under § 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension Service, in addition to Court precedents requiring consideration of § 4.16(b) when the issue is raised in an increased-rating case. See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). That is, since the Board itself cannot assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. In fact, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). See also Floyd v Brown, 9 Vet. App. at 96-97 (1996) (stating that once Board properly refers an extraschedular rating issue to Director of C & P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a) , 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the Board."). The Board finds that this case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner(s) who conducted his VA examination in January 2012, or to a qualified medical professional if that examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The examiner should review the Veteran's claims file and render an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's low back disorder is aggravated by, his service-connected diabetes mellitus. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the back disorder (i.e., a baseline) before the onset of the aggravation, as well as after the aggravation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Following the development set forth above, refer the Veteran's case to the Director of the Compensation and Pension Service for extra-schedular consideration for TDIU, prior to March 2, 2009. 3. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2011). _________________________________________________ MICHAEL A. HERMAN 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) (2011).