Citation Nr: 1237257 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-26 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total rating based on individual unemployability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active military duty from May 1944 to May 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). In a May 2012 brief, the Veteran's representative raised the issue of entitlement to service connection for coronary artery disease, to include as due to asbestosis. In a June 2012 remand, the Board referred this claim to the RO via the Appeals Management Center for the appropriate action. Based on a review of the claims file since the June 2012 Board remand, there was no indication that development of this claim had been initiated by the RO or the Appeals Management Center. As this claim has been not been adjudicated by the RO, the Board does not have jurisdiction to consider it herein and, thus, again refers it to the RO via the Appeals Management Center for the appropriate action. After the Appeals Management Center issued a September 2012 supplemental statement of the case and remitted the Veteran's claim to the Board for further appellate review, the Veteran submitted evidence consisting of a medical article pertaining to the relationship between depression and physical symptoms, and a medical article discussing the types, symptoms, risks factors, and complications, among other topics, of dementia. With these articles, the Veteran submitted a contemporaneous waiver of RO review. 38 C.F.R. § 20.1304 (2012). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In June 2012, the Board remanded the Veteran's claim of entitlement to TDIU. Therein, the Board determined that previous VA examinations afforded to the Veteran pursuant to this claim were inadequate because none of the examinations contemplated all of the Veteran's service-connected disabilities without consideration of his nonservice-connected disabilities. Consequently, the Board found that a remand was necessary in order to afford the Veteran another VA examination. Specifically, the Board directed the RO to afford the Veteran a VA examination wherein the examiner rendered an opinion as to whether the Veteran's service-connected disabilities, either alone or acting in concert with each other, precluded the Veteran from securing and following substantially gainful employment consistent with his education and occupational experience. The Board also directed the RO to ensure that this opinion was provided without consideration of the Veteran's nonservice-connected disorders or age. In July 2012, the Veteran was afforded a VA examination to assess the severity of his service-connected asbestosis. Therein, the examiner indicated that the Veteran's asbestosis had an impact on his ability to work, but did not provide an underlying rationale or elaborate as to what that impact entailed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008)(holding that a medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence). Further, the examiner did not address whether the Veteran's service-connected asbestosis by itself, or in combination with the Veteran's other service-connected disabilities, prevented him from securing and following substantially gainful employment consistent with his education and occupational experience. Instead, the VA examiner referred the reader to the findings from a July 2012 VA general medication examination. Based on the above, the Board finds that the July 2012 VA examination to assess the severity of the Veteran's asbestos is not adequate to determine whether the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and occupational experience. According to the July 2012 VA general medication examination report, the examiner observed that the Veteran's medical history was significant for a variety of disorders, including coronary artery disease (CAD); hypertension; hyperlipidemia; diabetes mellitus, type II; peripheral vascular disease; cervical spine degenerative disc disease; a total left knee replacement; right shoulder subacromial bursitis; memory loss/dementia; depression; insomnia; chronic obstructive pulmonary disease (COPD), with a history of exposure to asbestos; and thyroid nodules. Ultimately, the examiner rendered the following opinion: It is the opinion of this examiner that this [V]eteran would not be able to obtain and secure gainful employment (including sedentary employment) due to his chronic medical problems, including hearing loss, respiratory condition (COPD with history of asbestos exposure), dementia, CAD, arthritis, vision impairment[,] etc. As the examiner clearly considered nonservice-connected disorders in determining the Veteran's employability, the Board finds that the July 2012 general medical VA examination is inadequate for purposes of determining the Veteran's entitlement to TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In August 2012, the Veteran was afforded a VA audiological examination to ascertain the severity of his service-connected bilateral hearing loss and tinnitus. As a result of this examination, the examiner opined that the Veteran's bilateral hearing loss and tinnitus each had an impact on the conditions of the Veteran's daily life, including the ability to work. The Veteran then described the impact of his bilateral hearing loss as follows: I have difficulty hearing anyone unless I have my hearing aids in. I don't like them[,] they hurt my ears. I can only wear them for about a few minutes. Man they hurt my ears. With respect to the impact of his tinnitus, the Veteran stated that it was constant and that it bothered him. The VA examiner addressed the Veteran's employability as follows: [The Veteran] reports having difficulty hearing speakers in general, especially in background noise. He reports that speech lacks clarity for him. At this time, the [V]eteran was issued VA hearing aids, which help, but hurt his ears. Most occupations do not set physical requirements for hearing loss. There are some occupations such as law enforcement, firefighting[,] and pilots that do have hearing loss requirements. However, the examiner did not provide an opinion as to whether the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and occupational experience. As such, the August 2012 VA audiological examination is inadequate for purposes of determining whether the entitlement to TDIU is warranted. Based on the above, the Board finds that the RO failed to ensure that the Veteran was afforded a singular VA examination wherein the examiner addressed the salient question presented by the Veteran's claim of entitlement to TDIU. That is, whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. Consequently, the Board finds that the RO did not comply with the directives of the Board's June 2012 remand and, thus, another remand is required for corrective actions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Barr v. Nicholson, 21Vet. App. 303, 311 (2007) (holding that "[o]nce VA undertakes the effort to provide an examination when developing a service- connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided."). Accordingly, the case is remanded for the following action: 1. The Veteran must be afforded another VA examination to determine to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities of asbestosis, bilateral sensorineural hearing loss, and tinnitus, either alone or acting in concert with each other, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his non-service-connected disorders or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 2. The RO must notify the Veteran that it is his responsibility to report for the 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 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained that shows that notice scheduling the examination was sent to the Veteran's last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The RO must review the that the foregoing requested development has been completed. In particular, the RO must review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and the June 2012 remand. If not, the RO must implement corrective procedures prior to remitting the claim to the Board. 4. Once the above actions have been completed, the RO must re-adjudicate the claim on appeal, to include, but not limited to, consideration of any relevant evidence acquired since the September 2012 supplemental statement of the case. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2012).