Citation Nr: 1304882 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-42 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to February 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records and a December 2012 rating decision. A supplemental statement of the case (SSOC) has not yet been issued which addresses this additional evidence. 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's combined disability rating has been recently increased by RO action. The increased combined disability rating has not been considered by the RO in adjudicating the pending claim of for TDIU. Further, several original service connection claims are pending action by the RO. Given these factors, the TDIU claim must be remanded. The Virtual VA paperless claims processing system reflects that a December 2012 rating decision was issued in which the Veteran was awarded service connection for cavo-varus deformity of the left foot with nodules associated with rheumatoid arthritis, rated as 10 percent disabling. The combined disability rating for all service-connected disabilities increased from 70 percent to 80 percent. In light of the December 2012 rating decision, the Veteran's current service-connected disabilities include: degenerative changes of the lower thoracolumbar spine, secondary to rheumatoid arthritis, rated as 40 percent disabling; right total hip replacement, secondary to rheumatoid arthritis, rated as 30 percent disabling; moderate degenerative changes of the left hip, secondary to rheumatoid arthritis, rated as 10 percent disabling; anterior and medial compartment arthrosis with varus angulation of the left knee, secondary to rheumatoid arthritis, rated as 10 percent disabling; instability of the left knee, secondary to rheumatoid arthritis, rated as 10 percent disabling; cavo-varus deformity of the left foot with nodules associated with rheumatoid arthritis, rated as 10 percent disabling; and rheumatoid arthritis, rated as noncompensable (0 percent). The total combined rating for the Veteran's service-connected disabilities is 80 percent. 38 C.F.R. § 4.25, Table I-Combined Rating Table (2012). The Veteran meets the criteria of 38 C.F.R. § 4.16(a), as there is at least one disability ratable at 40 percent or more (degenerative changes of the lower thoracolumbar spine, secondary to rheumatoid arthritis) and sufficient additional disability to bring the combined rating to 70 percent or more. The December 2012 rating decision also deferred the issues of: service connection for degenerative arthritis in the neck associated with rheumatoid arthritis; service connection for a right foot deformity and nodules associated with rheumatoid arthritis; service connection for left hand arthritis associated with rheumatoid arthritis; service connection for left wrist arthritis associated with rheumatoid arthritis; service connection for right hand arthritis associated with rheumatoid arthritis; service connection for depression; service connection for right wrist arthritis; service connection right ankle nodules; service connection for right knee pain; an increased rating for total right hip replacement, secondary to rheumatoid arthritis; an increased rating for moderate degenerative changes of the left hip, secondary to rheumatoid arthritis; an increased rating for anterior and medial compartment arthrosis with varus angulation of the left knee, secondary to rheumatoid arthritis; an increased rating for instability of the left knee, secondary to rheumatoid arthritis; and an increased rating for degenerative changes of the lower thoracolumbar spine, secondary to rheumatoid arthritis. Given that the determination of the Veteran's combined disability rating is pending, his claim for TDIU is not ready for appellate review by the Board. Locklear v. Shinseki, 24 Vet.App. 311 (2011) (although a TDIU and increased rating issues are best analyzed as part of the same claim, bifurcation of the TDIU and increased rating aspects of the claim is generally within the Secretary's discretion). The Veteran was last provided VA examinations in June 2009 for the joints and spine. He reported that he worked "some" in the past year, part-time, as an x-ray and ultrasound inspector. The examiner found that the Veteran had rheumatoid arthritis that was quiescent at that time and degenerative joint disease of the left knee, left hip and lumbosacral spine by radiological criteria, which was not disabling at that time. He also noted that the Veteran had status post right total hip replacement that had healed with some minimal limitation of motion. The examiner concluded that the Veteran was not rendered unable to secure and maintain gainful employment in any capacity involving sedentary or light physical work due to his service-connected disabilities. Finally the examiner found that the Veteran would be unable to engage in heavy physical labor. In January 2010, a private psychologist, Dr. David L. Roebker, Ph.D. diagnosed the Veteran with depressive disorder. He found that the Veteran's primary psychological problems appeared to be his depression and increasing difficulties with pain due to the Veteran's service-connected arthritis that appeared to be worsening as he aged. Dr. Roebker concluded that considering the Veteran's age, physical condition and mental problems, he was regarded as totally occupationally disabled due to his physical and psychological problems. He explained that, because of the Veteran's physical problems, he was no longer able to perform the physical activities that he previously was able to do and, given his psychological predisposition, he was now having a very difficult time being unable to work and be more productive that he was in the past. He also found that, because of the Veteran's psychological problems, he may be expected to have reduced reliability, decreased work efficiency and problems functioning while under stress. Dr. Roebker also noted that the Veteran cited numerous examples of memory problems during his evaluation and noted his difficulty with providing information at times during the interview. Intelligence testing was also noted within the low average range and, given the Veteran's work history, Dr. Roebker found that the Veteran undoubtedly was functioning at a much higher level and sustained a loss in terms of functioning due to his service-connected problems and resulting psychological problems. Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The January 2010 report by Dr. Roebker indicates that the Veteran may have a depressive disorder that was secondarily caused by service-connected orthopedic disorders. Given this factor, and the award of service connection for cavo-varus deformity of the left foot with nodules associated with rheumatoid arthritis, and the pending claims before the RO including both claims for service connection and increased ratings for the Veteran's current service-connected disabilities on appeal, a new VA examination for the Veteran's TDIU claim is necessary in order to evaluate whether the Veteran is unable to secure or follow a substantially gainful occupation DUE TO THE COMBINED EFFECTS of all of his service-connected disabilities, including any additional disabilities that may be awarded service connection and those service-connected disabilities which may be increased by the RO. Accordingly, the case is REMANDED for the following action: 1. AFTER ALL OF THE ISSUES THAT HAVE BEEN DEFERRED BY THE RO IN THE DECEMBER 2012 RATING DECISION HAVE BEEN ADJUDICATED, the RO/AMC should arrange for a physician or specialist qualified in the assessment of occupational capability to review the claims folder and provide an opinion as to whether the Veteran is unemployable as a result of service-connected disorders. The examiner must state an opinion as to whether the Veteran has a depressive disorder that is related to service-connected musculoskeletal disorders. The examiner is asked to provide an opinion as to whether the Veteran's SERVICE-CONNECTED DISABILITIES IN THE AGGREGATE, (i.e., degenerative changes of the lower thoracolumbar spine, secondary to rheumatoid arthritis; right total hip replacement, secondary to rheumatoid arthritis; moderate degenerative changes of the left hip, secondary to rheumatoid arthritis; anterior and medial compartment arthrosis with varus angulation of the left knee, secondary to rheumatoid arthritis; instability of the left knee, secondary to rheumatoid arthritis; cavo-varus deformity of the left foot with nodules associated with rheumatoid arthritis; and rheumatoid arthritis-IN ADDITION TO ANY OTHER DISABILITIES THAT MAY HAVE BEEN SERVICE-CONNECTED SINCE THE DECEMBER 2012 DEFERRAL) render him UNABLE TO SECURE OR FOLLOW A SUBSTANTIALLY GAINFUL OCCUPATION DUE TO THE COMBINED EFFECTS OF ALL OF HIS SERVICE-CONNECTED DISABILITIES, BOTH PHYSICAL AND PSYCHIATRIC, IF ANY. THE EXAMINER MUST CONSIDER THE VETERAN'S EDUCATION, TRAINING, AND OCCUPATIONAL EXPERIENCE IN MAKING THIS DETERMINATION WITHOUT CONSIDERATION OF HIS NONSERVICE-CONNECTED DISORDERS OR AGE. 2. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiners have responded to the question posed. If not, the claims file must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 3. Readjudicate the claim for a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, TO INCLUDE A SUMMARY OF THE EVIDENCE ADDED TO THE CLAIM SINCE THE SEPTEMBER 2010 STATEMENT OF THE CASE (SOC) and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ Vito A. Clementi 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).