Citation Nr: 1306879 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-45 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1987 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho The Veteran testified before the undersigned Veterans Law Judge at a video-conference hearing in May 2012. A transcript of the proceeding is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the present case, the Veteran claims that she is unemployable due to her service-connected disabilities, to specifically include her low back disability. As such, she contends that she is entitled to a TDIU. In this regard, the Veteran asserts that she became too disabled to work on January 14, 2010. At her hearing before the Board, she testified that she believes her low back disability causes her to be unemployable. Transcript [T.] page 2. When asked whether she thought any other disabilities caused her to be unemployable, she discussed the other service-connected disabilities and how they affected her at various times in her career. T. page 8. She reported that her hysterectomy does not presently cause her any problems. Id. The Veteran also indicated that her allergy and sinus disabilities may bother her for a couple of weeks at a time, but the main reason she stopped working was due to bending, stooping, lifting teenage and older students, and driving a bus. Transcript p. 9. She reported that over a period of 12 years, she called in sick three or four times per year due to her back symptoms. She reported that her employer wanted to fire her because she complained so much about her back. T. page 10. The Veteran is service-connected for the following disabilities: removal of uterus and ovaries (50 percent); allergic rhinitis (30 percent); lumbosacral strain (20 percent); sinusitis (10 percent); hemorrhoids (noncompensable); and tubal ligation scar adhesions (noncompensable). Her combined total rating is 80 percent. As an initial matter, the Veteran meets the schedular requirements for entitlement to a TDIU as she has a combined disability rating of at least 70 percent with one service-connected disability that is at least 40 percent disabling. 38 C.F.R. § 4.16(a). She has also been found to be permanently and totally disabled by the Social Security Administration (SSA), as well as the Office of Personnel Management (OPM), and her private physician. Therefore, the question then becomes whether her unemployability is due to her service-connected disabilities. This is unclear and further development is required in order for the Board to make this determination. In this regard, in a January 2010 letter, OPM noted that the Veteran had claimed that she was disabled due to a torn meniscus, chondromalacia of the patella, advanced arthritis of the knees, arthritis in the lower back and neck, sinus, allergies, high blood pressure, bad cholesterol, metformin syndrome, hypothyroidism, right hip arthritis, foot and ankle pain, a skin condition, and right shoulder acromioclavicular joint separation. However, OPM determined that the Veteran was disabled for her position as a training technician due to worsening arthritis of her cervical spine and joints only. Likewise, SSA determined that the Veteran's medical conditions of cervical spine arthritis, arthritis and chondromalacia of both knees, lower back arthritis, right hip arthritis, right shoulder separation, and foot and ankle pain rendered her unable to work. Furthermore, the Veteran's private physician, Dr. Frizzell, indicated in a May 2010 letter that the Veteran had active arthritic activity at L5-S1, levoscoliosis in the lumbar spine, and a sacral cyst on lumbar MRI imaging. Dr. Frizzell indicated that he had reviewed the Veteran's position description at Centennial Job Corp, which she had held for 12 years. He noted that the physical demands of such position included long periods of walking, standing, occasional athletic exertion, participation in field trips, driving a bus, and restraining youth. Dr. Frizzell opined that, from a medical standpoint, the Veteran was unable to perform such job duties secondary to her lumbar spine. He further indicated that she was unable to gain meaningful employment secondary to her lumbar spine condition, which he subsequently identified as lumbosacral (low back) arthritis. In contrast, a January 2010 letter from a VA physician indicated that he reviewed a functional status evaluation conducted in December 2009 and noted that she demonstrated at least the capacity to work a 7 hour day, sedentary duty with occasional bending/stopping and squatting. As an initial matter, the Board notes that the Veteran is currently service-connected for lumbosacral strain and not lumbar spine/lumbosacral arthritis. While the RO initially only service-connected a low back or lumbosacral strain, the Board notes that, in various rating decisions, the RO has indicated that arthritis, and the symptoms associated with such diagnosis, was included in such a rating. However, in January 2010, the RO obtained a VA opinion to determine whether the Veteran's arthritis was related to the service-connected lumbar strain. The January 2010 VA examiner determined that it was less likely than not that the Veteran's current degenerative disc and joint disease of the lumbosacral spine is related to her lumbosacral strain. She further found that the Veteran's symptoms of the constant severe dull ache in her back, and numbness and tingling of the bilateral lower extremities were more likely than not related to her chronic degenerative changes. The Board observes that the Veteran has not undergone a VA examination for the purposes of establishing TDIU. Such an examination and an opinion are necessary to determine whether the Veteran's service-connected disabilities, singularly or jointly, render her unemployable. With respect to the Veteran's service-connected lumbosacral strain and nonserivce-connected lumbar spine arthritis, the examiner should be advised that, if it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, such signs and symptoms should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). Lastly, in order to ensure that all of the pertinent treatment records are of record, any outstanding private records from Dr. Frizzell and VA outpatient treatment records dated from November 2011 to the present from the Boise, Idaho, VA Medical Center should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, obtain any outstanding private records from Dr. Frizzell and VA outpatient treatment records dated from November 2011 to the present from the Boise, Idaho, VA Medical Center. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the Veteran should be afforded an appropriate VA examination so as to determine the impact of her service-connected disabilities on her employability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner must evaluate and discuss the effect all of the Veteran's service-connected disabilities, singularly and jointly, have on her employability. In this regard, the examiner should opine as to whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities, i.e., removal of uterus and ovaries, allergic rhinitis, lumbosacral strain, sinusitis, hemorrhoids, and tubal ligation scar adhesions, either singularly or jointly, taking into consideration her level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. With respect to the Veteran's service-connected lumbosacral strain and nonserivce-connected lumbar spine arthritis, the examiner should be advised that, if it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, such signs and symptoms should be attributed to the service-connected condition. The examiner should consider OPM's and SSA's decisions, the January 2010 letter from a VA physician, the January 2010 VA examination concerning the Veteran's back, and Dr. Frizzell's May 2010 letter. The rationale for any opinion offered should be provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).