Citation Nr: 1301969 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 07-24 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total rating due to individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a February 2011 decision, the Board denied entitlement to a TDIU. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) in March 2011. By order dated in March 2011, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. In a February 2012 decision, the Board again denied entitlement to a TDIU. The Veteran appealed the denial to the Court, and the parties submitted a Joint Motion in July 2012. By order dated in July 2012, the Court granted the Joint Motion and again remanded the matter for compliance with its instructions. The case now returns to the Board for appellate consideration. 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 Veteran seeks entitlement to a TDIU. The Veteran is currently service- connected for complete peroneal nerve paralysis of the left leg, rated as 40 percent disabling; chondromalacia, to include meniscus tear, of the right knee, rated as 40 percent disabling; major depression associated with complete peroneal nerve paralysis of the left leg, rated as 30 percent disabling; post-operative residuals of the left knee with resultant instability, rated as 20 percent disabling; and degenerative joint disease of the left knee, rated as 10 percent disabling. His combined disability rating is 90 percent. As mentioned above, in a February 2011 decision, the Board denied the Veteran's claim for entitlement to a TDIU. The Veteran appealed the denial to the Court, and the parties submitted a Joint Motion in March 2011. Specifically, the Joint Motion stipulated that the Board erroneously concluded that the Veteran did not meet the schedular requirements for consideration of TDIU under 38 C.F.R. § 4.16(a). By order dated in March 2011, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. In a February 2012 decision, the Board again denied entitlement to a TDIU. The Veteran appealed the denial to the Court, and the parties submitted a Joint Motion in July 2012. Specifically, the Joint Motion stipulated that the Board erred in not adequately addressing the Veteran's occupational and educational histories and how they related to his employability as to the issue of entitlement to a TDIU. By order dated in July 2012, the Court granted the Joint Motion and again remanded the matter for compliance with its instructions. In addition, the Veteran's representative consulted a professional vocational consultant to review the Veteran's claims file for the purpose of determining whether his service-connected disorders prevented him from securing and following a substantially gainful occupation. In an October 2012 report, the professional vocational consultant opined "within a reasonable degree of vocational certainty" that the Veteran's service-connected left lower extremity disorders have resulted in his inability to secure and follow a substantially gainful occupation since September 2004. The Veteran's VA treatment records contain several references to the Veteran's employability. In addition, in a January 2007 decision, the Social Security Administration (SSA) determined that the Veteran has been under a disability, as defined by the Social Security Act, since September 2004 due to his osteoarthritis of the left knee, congestive heart failure, hypertension, reactive airway disease, obstructive sleep apnea, and obesity. Although service connection is not in effect for congestive heart failure, hypertension, reactive airway disease, obstructive sleep apnea, or obesity, his osteoarthritis of the left knee is service-connected. Moreover, although several recent VA examinations address the issue of the Veteran's employability, they do not consider all of the Veteran's service-connected disabilities in the aggregate when doing so. For example, in the report of a September 2009 VA examination, it was noted that the Veteran had been found to be disabled by the SSA due to coronary artery disease and obesity. The VA examiner opined that the Veteran's service-connected mild left peroneal nerve palsy and moderate degenerative joint disease of the bilateral knees alone did not cause his inability to work, as he was able to ambulate with assistive devices and move very well despite elective hammertoe surgery of the left foot. However, in the report of a December 2011 VA knee and lower leg conditions examination, the examiner opined that the Veteran's knee and/or lower leg conditions impacted his ability to work because he reported being unable to stand or to be physical for long periods of time, as well as constant pain and difficulty with moving around and getting up from sitting. In the report of a December 2011 VA mental disorders examination, the Veteran stated that he was no longer able to continue functioning in the workplace in 2005 because of his congestive heart failure and ?chronic obstructive pulmonary disease, both of which are not subject to service connection. In addition, the examiner indicated that the Veteran was currently having difficulty in his academic pursuits due to concentration difficulties and some gradual increase in social isolation, presumably due to his service-connected major depression. The Board emphasizes that the Veteran has not been afforded a VA examination to determine the effects of all of his service-connected disabilities in the aggregate on his ability to obtain or maintain employment consistent with his education and occupational experience. As such, the Board finds that the Veteran should be afforded such as examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be afforded an examination to determine the effects of his service-connected disabilities in the aggregate on his ability to obtain or maintain employment consistent with his education and occupational experience. The claims file and any 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. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes his full work and educational history. Based on a review of the evidence of record, a clinical examination, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to his service-connected disabilities, to include any medications taken for those disabilities, consistent with his education and occupational experience, and irrespective of age and any nonservice-connected disorders. The opinion provided must include a complete rationale. 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 the 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 scheduled 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 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of the scheduled VA examination must be placed in the Veteran's claims file. 3. After the above actions have been completed, the RO must readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). This claim 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. 2012). _________________________________________________ L. M. BARNARD 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) (2012).