Citation Nr: 1311110 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-23 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Atlanta Regional Office (RO) in Decatur, Georgia, which denied entitlement to individual unemployability. In January 2013, the Veteran testified at a hearing before the undersigned using video-conferencing technology. A transcript of the proceeding is of record. The issues of an increased evaluation for the Veteran's back disability and incontinence due to his back disability were raised by the Veteran during the January 2013 hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Board sincerely regrets having to remand the Veteran's claim; however, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. The Veteran filed a claim for TDIU in October 2007. The law provides that TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this regard, TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1)Disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. If, however, a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Throughout the period on appeal, the Veteran has been service-connected for residuals of lumbar strain with degenerative disc disease and degenerative joint disease, rated as 60 percent disabling. Accordingly he meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). Therefore, the material issue is whether the Veteran's back disability precludes substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 4.16; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran was afforded a QTC examination in July 2010. The examiner did not describe the effects the Veteran's condition had on the Veteran's usual occupation and just noted that the Veteran was retired. The examiner explained that the Veteran's back disability affected his daily activities due to his difficulty bending, walking or standing for long periods. The Veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In September 2010, the Veteran's VA treating physician, Dr. P.P., submitted a letter explaining that the Veteran's cervical and lumbar areas have worsened considerably over the past several years. The Veteran currently experienced daily, severe upper and lower spinal pain, reduced spinal range of motion, and pain that radiated from the spine into all four extremities. The Veteran took prescription medications daily for symptom relief for this condition. The physician concluded that the Veteran's spinal disc condition prevented him from obtaining and maintaining gainful employment due to physical limitations from the spinal disc condition, sedation caused by medications due to treat the spinal disc condition, and by a reduced ability to concentrate caused by the pain from the spinal disc condition. Unfortunately, the physician did not discuss whether the Veteran's service-connected disability, alone, rendered the Veteran unemployable. For these reasons, the Board finds that the Veteran should be afforded a new VA examination for his TDIU claim. VA must make a reasonable effort to obtain relevant records, which include the Veteran's SSA records. But see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (finding that the duty to assist did not include obtaining Social Security Administration (SSA) records where VA had a copy of the decision, and there was no evidence that the decision addressed the disability at issue in the appeal). The claims file shows that although SSA records were obtained which discuss the Veteran's back disability, not all records including the SSA decision documents were included. During the January 2013 Board hearing, the Veteran testified that he was not receiving SSA disability payments but then testified that he was. It is unclear whether the Veteran is currently receiving SSA benefits. As it appears that the Veteran could be receiving SSA benefits for his back disability, any additional SSA records are relevant and should be obtained. VA treatment records note that the Veteran was receiving treatment for his low back pain at Hughes Spalding. These treatment records are not associated with the claims file and could be relevant to the Veteran's claim. Upon remand, the AMC/RO should attempt to obtain these records and any other records identified as relevant. In addition, VA treatment records dating from October 2006 should be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Accordingly, the case is REMANDED for the following action: 1. Contact SSA. All records corresponding with the Veteran's reported grant of SSA disability benefits should be requested. All records obtained pursuant to this request must be included in the Veteran's claims file. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran from October 2006. 3. Ask the Veteran to submit any relevant private treatment records pertaining to his back disability, including from Hughes Spalding or an authorization form that would allow VA to request the records on his behalf. If, after making reasonable efforts to obtain named records the AMC/RO is unable to secure same, the AMC/RO must notify the Veteran and (a) identify the specific records the AMC/RO is unable to obtain; (b) briefly explain the efforts that the AMC/RO made to obtain those records; (c) describe any further action to be taken by the AMC/RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. Schedule the Veteran for a VA examination by an appropriate examiner to determine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's service-connected residuals of lumbar strain with degenerative disc disease and degenerative joint disease, including consideration of the effects of medication taken therefore, render the Veteran unable to obtain and/or maintain gainful employment, given his level of education and work history. The Veteran's age may not be considered, and the fact that the Veteran was retirement eligible at the time he stopped working is also not relevant in determining whether his current back condition is of such severity that it renders him unable to obtain or maintain gainful employment. If the Veteran's service-connected disability does not render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disability, given his current skill set and educational background. Please provide a complete explanation for the opinion. 5. Ensure that the information provided in the examination report(s) satisfies the criteria above and, if not, return the report(s) as insufficient. Then readjudicate the Veteran's TDIU claim after ensuring that any other development deemed warranted is complete. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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). 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). _________________________________________________ S. S. Toth 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).