Citation Nr: 1311213 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 07-19 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran, J.H., and E.C. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to August 1977. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In December 2007, the Veteran testified at a RO hearing before a Decision Review Officer. In October 2009, she testified before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are of record. In January 2010, the Board denied entitlement to service connection for hemorrhoids and denied increased evaluations for service-connected degenerative joint disease (DJD) of the cervical spine and for varicose veins of the left popliteal area; the Board remanded the issues of whether new and material evidence has been received to reopen a claim for service connection for neuropathy of the left side of the body, entitlement to service connection for irritable bowel syndrome (IBS), entitlement to a rating in excess of 20 percent for fibrositis syndrome, entitlement to separate compensable ratings for disability of each knee, and entitlement to TDIU to the Appeals Management Center (AMC) for additional development. In a February 2011 rating decision, the AMC granted a higher 40 percent rating fibrositis syndrome with left and right knee pain, neuropathy of the left side of the body, IBS, headaches, sleeping difficulty, anxiety and depression, effective October 13, 2004 (the date of the Veteran's claim for an increased evaluation). In September 2011, the Board noted that THE maximum schedular rating had been assigned for fibrositis syndrome and that the evaluation was now inclusive of neuropathy of the left side of the body and IBS. Therefore, the Board determined that these issues were no longer on appeal. As to the remaining issues, the Board denied separate compensable ratings for right and left knee disabilities and remanded the issue of entitlement to a TDIU to the AMC for additional development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the Virtual VA file reveals no additional records pertinent to the appeal. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board's review of the claims file reveals that further action is warranted, even though such action will, regrettably, further delay an appellate decision on the claim. As noted in the Board's September 2011 remand, the Veteran is currently service connected for fibrositis syndrome, 40 percent disabling; DJD of the cervical spine, 30 percent disabling; and varicose veins of the left popliteal area, 10 percent disabling. Her combined rating is 60 percent. Therefore, she does not meet the schedular criteria for a TDIU under the provisions of 38 C.F.R. § 4.16(a) (2012). The Board points out that it is VA's policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16(b) (2012). Therefore, the Board remanded the issue of entitlement to a TDIU for referral to VA's Director of Compensation Service (formerly Compensation and Pension Service) for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 4.16(b). In March 2012, the Director of Compensation Service denied a TDIU on an extraschedular basis. The evidence supporting the Veteran's claim includes a December 2007 letter from a private physician, Dr. S.P. In that letter, Dr. S.P. points out that the Veteran "has multiple medical problems including but not limited to: fibromyalgia, history of chronic chest pain with exhaustive workup per [Dr. S.] in the past, history of asthma, anxiety, irritable bowel disease, chronic back pain, history of cataplexy per the patient, osteoarthritis, constipation, history of migraines, history of cardiac arrhythmia, history of orthostatic hypotension, ect. [sic]." The physician opined that "it is my medical opinion that secondary to [the Veteran's] medical problems, she is unable to work at this time." In rendering her opinion, Dr. S.P. considered both service-connected and nonservice-connected conditions. As the Director of Compensation Service pointed out, nonservice-connected conditions may not be considered for purposes of applying the provisions of 38 C.F.R. § 4.16(b). See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Blackburn v. Brown, 5 Vet. App. 375 (1993). However, Dr. S.P.'s opinion at least raises the possibility that the Veteran may be unemployable due to her service-connected disabilities. Given the lack of clarity as to which symptoms are associated with her service-connected fibrositis syndrome and the lack of a medical opinion addressing whether she is unemployable due to service-connected disabilities alone, the Board finds that a VA medical examination and vocational rehabilitation assessment are necessary to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2012); 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo VA examination, by an appropriate physician at a VA medical facility. The entire claims file must be made available to the physician designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. Following a review of the claims folder and examination of the Veteran, the physician should specifically identify all symptoms associated with the Veteran's service-connected fibrositis syndrome and discuss the nature and severity of such symptomatology. The physician should also offer an opinion as to whether the Veteran's service-connected fibrositis syndrome, singly, or in concert with her other service-connected disabilities, namely, her DJD of the cervical spine and varicose veins, preclude her from securing and following substantially gainful employment consistent with her education and occupational experience or whether such an etiology or relationship is unlikely (i.e., less than a 50-50 probability). Age is not to be considered a factor in rendering this opinion. The physician should set forth all examination findings and a complete rationale for any opinion expressed must be provided. 2. Then, arrange for the Veteran to undergo a VA vocational rehabilitation assessment. The assessment should address whether the Veteran's service-connected disabilities render her unable to secure and follow substantially gainful employment. Any efforts to complete this directive should be documented and, if an assessment cannot be obtained, the reasons for this should be clearly stated in the file. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and her representative a Supplemental Statement of the Case and an appropriate period of time for response. 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 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). _________________________________________________ CHERYL L. MASON 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).