Citation Nr: 1307162 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 09-08 072 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to June 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO denied the Veteran's claim for a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and the claim for a TDIU. In July 2008, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. In May 2010, the Board granted a 70 percent rating for PTSD, and remanded the remaining claim for a TDIU to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing the requested action, the RO continued the denial of the claim for a TDIU (as reflected in a September 2011 supplemental SOC (SSOC)), and returned the matter to the Board for further appellate consideration. The Board notes that, while the Veteran was previously represented by the Military Order of the Purple Heart, in August 2008, before certification of the appeal to the Board, the Military Order of the Purple Heart revoked its power of attorney by way of a letter sent to the VA and the Veteran. As the Veteran has not obtained another representative, the Board now recognizes the Veteran as proceeding pro se in this appeal. In March 2012, the Board denied entitlement to TDIU. The Veteran appealed the March 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted the Appellee's Motion for Remand filed by representatives for the VA, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the Appellee Motion. In October 2012, the Board remanded the claim for a TDIU to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action consistent with the Appellee Motion. After attempting to conduct the requested development, the RO/AMC continued to deny the claim remaining on appeal (as reflected in a January 2013 supplemental SOC (SSOC)), and returned the matter to the Board for further consideration. For reasons expressed below, the remaining claim on appeal is, again, being remanded to the RO, via the AMCC. VA will notify the Veteran if further action, on his part, is required. REMAND The Veteran has asserted that he is unable to work as a result of his service-connected disabilities. In this case, service connection is in effect for PTSD (rated as 70 percent disabling), fracture of the right ankle with lateral deviation of the foot and ankylosis (rated as 20 percent disabling), and residuals of third degree burns of the right hand, index and little fingers with small areas of the fourth and fifth digits (rated as noncompensable). In October 2012, the Board remanded this claim for additional evidentiary development consistent with the Appellee Motion granted by the Court in August 2012. In the Appellee Motion, representatives for the Secretary of VA indicated that a remand was required because, while there was medical evidence of record that addressed the effect each of the Veteran's service-connected disabilities had on his ability to secure and maintain employment, the evidentiary record did not contain a single medical opinion that discussed the total effect of the Veteran's service-connected disabilities, collectively, on his employability. In the October 2012 Remand, the Board directed the RO, via the AMC, to schedule the Veteran for a VA examination to determine the functional effects of each service-connected disability on his ability to perform substantially gainful employment and obtain a medical opinion regarding whether it is as likely as not that the Veteran's service-connected disabilities, either individually or in concert, render him unable to obtain or retain substantially gainful employment. On remand, the RO, via the AMC, scheduled the Veteran for several VA examinations, including a general medical, scars, joints, PTSD, hypertension, heart, and sleep apnea examination. See VA examination reports dated December 2012. The medical professionals who conducted the examinations relevant to this appeal, i.e., the scars, joints, and PTSD examinations, provided evidence and opinions regarding whether each service-connected disability being evaluated affected the Veteran's ability to obtain and maintain employment. However, none of the medical professionals who evaluated the Veteran provided the requested opinion with respect to whether the Veteran's service-connected disabilities, in concert, render him unable to obtain or retain substantially gainful employment. In this regard, the Board notes that the medical professional who conducted the general medical examination did not provide the requested opinion but, instead, identified the Veteran's current service and non-service-connected disabilities and stated that there were no other disabilities that impacted the Veteran's ability to work. It is clear that the RO attempted to comply with the Board's directives in the October 2012 Remand, as it arranged for the Veteran to be given VA examinations and requested that appropriate medical opinions be provided. However, the intent and purpose of the previous remand has not been achieved. In this regard, the Board emphasizes that the purpose of the previous remand was to obtain a single medical opinion that addresses whether it is as likely as not that the physical and mental impairment caused by the Veteran's service-connected disabilities render him unable to obtain or retain substantially gainful employment, either individually or in concert. Despite the action taken by the RO after the October 2012 Remand, a single medical opinion that addresses whether the Veteran's service-connected disabilities collectively affect his employability was not obtained, which leaves the evidentiary record in the same position as it was at the time of the August 2012 Court Order. Therefore, the Board finds that the directives of the October 2012 Remand have not been substantially complied with, thereby necessitating another remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (compliance by the Board or the RO with remand instructions is neither optional nor discretionary). Accordingly, on remand, the RO, via the AMC, should arrange for the Veteran to undergo examination by an appropriate physician, preferably a psychiatrist or any other medical doctor who can render an opinion on the functional impairment caused by the Veteran's physical and mental service-connected disabilities, to review the record and provide another opinion with respect to whether the Veteran's service-connected disabilities, in concert, render him unable to secure and maintain substantially gainful employment. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim for a TDIU (which is considered a claim for increase). See 38 C.F.R. § 3.655 (b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. While this matter is on remand, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2.If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a single VA examination, by a psychiatrist or other appropriate physician (M.D.), at a VA medical facility, to obtain an opinion addressing the impact of his service-connected physical and mental disabilities on his employability. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. Based on examination of the Veteran, and review of the record, the physician should describe the functional effects of each service-connected disability on the Veteran's ability to perform the mental and/or physical acts required for substantially-gainful employment. Then, the physician should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that-without regard to the Veteran's age or impairment from any nonservice-connected disability(ies)-the Veteran's service-connected disabilities, either individually or in concert, render(s) him unable to obtain or retain substantially gainful employment. In rendering the requested opinion, the physician should consider discuss the pertinent medical and other evidence of record, including the prior VA examination reports which reflect evaluation each service-connected disability. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for a TDIU. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim for a TDIU, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim for a TDIU in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).