Citation Nr: 1306373 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 13-00 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1943 to March 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim known as Virtual VA. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 claims entitlement to a total disability rating based on individual unemployability due to his service connected disabilities. He specifically asserts that he cannot work due to residuals of frozen feet with peripheral neuropathy in each leg. He asserts that these disorders prevent him from being able to walk or stand for long periods of time and cause him great difficulty when driving. The Veteran has an eighth grade education and worked in construction until his retirement in 1989. His occupational experience also includes work as a taxi driver, and as an asphalt and concrete contractor. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, by reason of his service connected disabilities. The veteran's age may not be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of establishing one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). As the Veteran's residuals of frozen feet with peripheral neuropathy in the right and left legs both arise from a common etiology, these disabilities may be considered a single disability, ratable at 60 percent, for the purpose of determining whether schedular entitlement to total disability evaluation based on individual employability is warranted. Id. In November 2012 the Veteran was afforded a VA examination following which the examiner, a nurse practioner, opined that the Veteran's residuals of frozen feet with peripheral neuropathy prevented him from performing prolonged standing, walking, climbing, or carrying, but did not prevent him from performing sedentary employment. The examiner did not, however, provide any discussion of whether the Veteran's service connected disabilities prevent him from substantially gainful employment that is consistent with his education and occupational experience. In January 2013, the Veteran submitted a letter from a VA physician who stated that the appellant had difficulty with prolonged walking or standing, and was not able to work due to his history of cold injury to the lower extremities and arthritis. The Veteran, however, is not service connected for arthritis and the physician did not provide any further rationale for the opinion, or discuss why these disorders would prevent sedentary employment. The Board finds that these contradictory opinions fail to provide adequate medical rationale or analysis such as would allow them to be weighed against each other or other contrary evidence, as is required for VA examination opinions to be adequate for VA adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board accordingly finds that an opinion from a vocational rehabilitation specialist should be requested to provide an opinion as to whether there are substantially gainful occupations that the Veteran could perform, that are consistent with his education and occupational experience, despite his service connected disabilities. Additionally, the Veteran has asserted that he underwent periodic treatment for residuals of cold injury at the VA St. Louis Health Care System. VA records that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Such medical records may be directly relevant to the Veteran's claim and should be associated with the claims file for the record to be complete. See 38 U.S.C.A. § 5103A(a), (b), (c) (West Supp. 2012); 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should obtain from the VA St. Louis Health Care System all records and test results relating to treatment of appellant's residuals of frozen feet and peripheral neuropathy, hearing loss, and tinnitus since April 2009. All records should be associated with the claims file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After the above records have been associated with the claims file, the RO/AMC should obtain an opinion from a vocational rehabilitation specialist addressing whether it is at least as likely as not (i.e., is there at least a 50/50 chance) that the Veteran's service connected disabilities alone (i.e., right and left leg residuals of frozen feet with peripheral neuropathy; tinnitus; and bilateral hearing loss) prevent all forms of substantially gainful employment that are consistent with his education and occupational experience. The Veteran's hypertension, degenerative joint disease, and type II diabetes mellitus and disorders associated with diabetes mellitus, are not service connected and may not be considered. The vocational rehabilitation specialist must note that the appellant has eight years of education and occupational experience in construction, as a taxi cab driver, and as an asphalt and concrete contractor. The appellant's age MAY NOT be considered. In preparing any report the vocational rehabilitation specialist must address in writing the November 2012 VA examination opinion and the January 2013 physician's letter. The claims folder, access to Virtual VA, and a copy of this remand, must be provided to and reviewed by the specialist. A complete rationale must be provided for any opinion offered, and the vocational rehabilitation specialist must explain the reasoning therefore. If the question cannot be answered without resorting to pure speculation, the specialist must provide a complete explanation as to why that is so. 3. After undertaking any other development deemed appropriate, the AMC/RO should readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ DEREK R. BROWN 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).