Citation Nr: 1308618 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-33 439 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to a total rating based upon individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from September 1966 to December 1973, to include verified multiple tours of duty in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2009 in which the RO denied a TDIU. The Veteran timely perfected an appeal as to the denial. In February 2013, a Deputy Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 8 C.F.R. § 20.900(c) (2012). For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further action in this appeal is warranted. The Veteran has been awarded service connection for the following: diabetic nephropathy (rated as 60 percent disabling); nonproliferative diabetic retinopathy (rated as 30 percent disabling); diabetes mellitus, type II (rated as 20 percent disabling); adhesive capsulitis of the left shoulder (rated as 20 percent disabling); diabetic peripheral neuropathy of the right lower extremity, rated as 10 percent disabling); diabetic peripheral neuropathy of the left lower extremity (rated as 10 percent disabling); and erectile dysfunction (rated as 0 percent disabling, or noncompensable). The combined disability rating is 90 percent. The Veteran is also entitled to special monthly compensation (SMC) for loss of use of a creative organ and for loss of use of one eye, having light perception only. During the pendency of this appeal, in a July 2012 letter of July 2012, the Veteran reported that states that he is now receiving treatment for prostate cancer for which he was claiming disability compensation. The Board notes that prostate cancer among the diseases for which VA's Secretary has recognized as associated with herbicide exposure, to include that presumed for veterans who served in the Republic of Vietnam during the Vietnam era. See 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) (2012). The Board points out that an award of service connection for prostate cancer could clearly have an impact upon whether he is able to obtain or retain substantially gainful employment, as required for a TDIU rating under 38 C.F.R. § 4.16(a) (2012). Thus, any adjudication of the claim for service connection for prostate cancer is inextricably intertwined with the claim for a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the RO has not considered the matter of the Veteran's entitlement to service connection for prostate cancer, the Board does not currently have jurisdiction of this issue, it must be addressed by the RO, in the first instance. If the RO denies service connection for prostate cancer, the RO, must give the Veteran and his representative notice of the decision, and opportunity to perfect an appeal as to that issue. The Board emphasizes to the Veteran that, if he wishes to pursue an appeal of any denial of service connection for prostate cancer, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). Given the above, any Board action on the TDIU claim, at this juncture, would be premature; hence, a remand of this matter is warranted. The RO also finds that further development of the TDIU claim is required. The Board observes that there is on file is an August 2010 statement, on VA letterhead, from the "FNP-C covering provider" for a VA nurse practitioner stating that the Veteran was a patient at the "MOVET" clinic and that he was not physically capable of working due to his long-standing history of medical conditions such as chronic kidney disease, diabetes with neuropathy, retinopathy, and nephropathy. He was also visually impaired in his left eye. However, current records of treatment at that facility are not on file. Also, in September 2009 correspondence from the Veteran and his representative in September 2009 it was stated that he received his treatment at "VA Medical Centers, John Cochran and Jefferson Barracks-St. Louis, MO." However, no VA outpatient treatment (VAOPT) records dated since July 2009 are on file. The Board emphasizes that records generated by VA facilities 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); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the RO associate with the claims file all outstanding records of relevant VA evaluation and/or treatment of the Veteran since July 2009 from the above-noted facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 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). After records and/or responses for each contacted are associated with the claims file, the Veteran should be afforded a VA examination for the purpose of determining whether he is able to obtain or retain substantially gainful employment due solely to his service-connected disabilities. In TDIU claims, where evidence of unmployability is presented, VA's duty to assist include that VA obtain an examination which includes an opinion on what effect the appellant's service- connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994); see 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a). Such an opinion has not yet been obtained, but is needed in light of evidence noted above. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of a TDIU. See 38 C.F.R. § 3.655 (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. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 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 compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to the claim on appeal. As indicated, the RO's adjudication of these claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding VAOPT records since July 2009 from the MOVET" clinic and from the VA Medical Centers, identified by the Veteran and his service representative, i.e., John Cochran and Jefferson Barracks-St. Louis, MO. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for a TDIU that is not currently of record. 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). 3. Assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claim files. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe any further action to be taken. These records should be associated with the claim files. 4 After all records and/or responses from each contacted entity 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 an appropriate physician at a VA medical facility, to obtain an opinion addressing the impact of his service-connected 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. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must 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). 7. After completing the requested action, and any additional notification and/or development deemed warranted, After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the issue of service connection for prostate cancer, then the claim for a TDIU, in light of all pertinent evidence and legal authority. 8. If the claim for service connection for prostate cancer is denied, provide to the Veteran and his representative appropriate notice of the denial and of the Veteran's appellate rights, and afford them full opportunity to perfect an appeal as to that matter. 9. If the claim for a TDIU remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board. If the claim for service connection for prostate cancer is denied, to avoid piecemeal litigation, the RO should not return the claim files to the Board until the Veteran has perfected an appeal of that matter, or the time period for doing so has expired, whichever occurs first. The purpose of this REMAND is to afford due process and to accomplish a further 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 REMAND 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ 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).