Citation Nr: 1311996 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-03 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based in individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and J. R. ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1978. This appeal to the Board of Veterans' Appeals (Board) arises from a March 2009 rating decision in which the Regional Office in Nashville, Tennessee (RO), via brokered work from the Regional Office in Petersburg, Florida, denied entitlement to TDIU. In May 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2010 and a supplemental statement of the case (SSOC) was issued in December 2010. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. In March 2011, a hearing was held before the undersigned Acting Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002). A transcript of these proceedings has been associated with the claims file. A review of the Virtual VA paperless claims processing system reveals that entitlement to service connection for a mood disorder was granted as 30 percent disabling, effective March 17, 2011. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to request additional records and provide the Veteran with a new VA examination. Remand is required to obtain any available VA Vocational Rehabilitation records and any records related to a work injury. Remand is also required to obtain an adequate examination regarding the effect of the Veteran's service-connected disabilities on his employability. Remand may be required where the record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). The Veteran is currently service-connected for the following disabilities in the following percentages: degenerative arthritis of the lumbar spine, 40 percent; residuals of torn ligament of the left knee, 10 percent; residuals of compression fracture of the thoracic spine at T12, 10 percent; traumatic arthritis due to right hip injury, 10 percent; residuals of meniscectomy of the right knee, 10 percent; bilateral hearing loss, 0 percent; and a mood disorder, 30 percent. The Board observes that the Veteran's schedular combined rating is 70 percent and that he has at least one disability that is 40 percent disabling. As such, he meets the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a) (2012). Thus the remaining issue is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The Veteran has claimed that his service-connected disabilities, particularly those related to his spine, knees, and hip, prevent him from obtaining employment. In his May 2009 NOD, the Veteran stated that these service-connected conditions have caused him excruciating pain and ultimately led to his decision to cease work as a printing press mechanic on August 5, 2008. Since that time, the Veteran related that his service-connected conditions have gotten to the point where he is in constant pain, making it difficult for him to function daily and requiring taking pain medication several times a day with little to no relief and significant side effects. At his March 2011 Board hearing, the Veteran further elaborated on the interconnectedness of his service-connected conditions and the constant resultant pain. He also indicated that he cannot take enough medicine to deal with the pain in a work environment because such medicine makes him ineffective in carrying out occupational tasks. The Veteran's employer submitted a VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, in October 2008 in which it indicated that the Veteran's last day of employment was August 4, 2008 and that the Veteran is no longer employed due to medical reasons. An attached document from S.R. further indicated that the Veteran was awaiting a settlement for a work-related injury, but provided no further detail as to the nature of the injury. The Veteran also testified at his Board hearing that he had participated in VA Vocational Rehabilitation and had received training on computers. These records have not been associated with the Veteran's claims file. Accordingly, remand is required to attempt to obtain any relevant records relating to the post-service work injury referenced in the October 2008 document from S.R. and records pertaining to the Veteran's participation in VA Vocational Rehabilitation. See generally 38 C.F.R. § 3.159(c). The Veteran was provided with a general VA examination in November 2008. The examination took account of all of the Veteran's service-connected conditions. Upon reviewing the claims file, taking subjective history from the Veteran, and performing objective testing, the examiner offered opinions with regard to the Veteran's employability due to his disabilities. For the spine, the examiner noted that the Veteran suffered low back pain due to the disability and that this had no effect on feeding, mild effects on bathing, dressing, toileting, grooming, and driving, moderate effects on chores, shopping, and traveling, severe effect on recreation, and prevents exercise and sports. The examiner stated that there were no structural limitations in terms of back pain with respect to the Veteran's ability to work. Rather, the Veteran's function would be limited with respect to sedentary and physical employment by pain. For the bilateral knee conditions, the examiner noted no effects on feeding, bathing, dressing, and grooming, mild effect on toileting, moderate effects on chores, shopping, traveling, and driving, severe effect on recreation, and prevents exercise and sports. The examiner stated that the Veteran's knees limit his ability to work in an active work place because he would have to work in a lot of pain, which is difficult. For the right hip condition, the examiner noted no effects on feeding, bathing, dressing, and grooming, mild effect on toileting, moderate effects on chores, shopping, traveling, and driving, severe effect on recreation, and prevents exercise and sports. The examiner stated that the Veteran's right hip limits his ability to work in an active work place because he would have to work in a lot of pain, which is difficult. The Veteran was provided with an additional VA examination for his spine in January 2010. For the spine, the examiner noted that the Veteran suffered low back pain due to the disability and that this had no effect on feeding, mild effects on bathing, traveling, toileting, grooming, and driving, moderate effects on dressing, chores, shopping, and traveling, severe effect on recreation, and prevents exercise and sports. Although it was noted that the Veteran indicated that he had not worked since August 2008 due to back pain, the examiner did not provide any opinion regarding the Veteran's employability. The Board finds that the November 2008 and January 2010 VA examinations are inadequate to assess the issue of the Veteran's employability. Although both examinations took the claims file, subjective histories, and objective testing into account, they failed to adequately address whether the Veteran's disabilities in and of themselves prevent the Veteran from being able to secure or follow a substantially gainful occupation. In particular, the November 2008 VA examination merely stated that the Veteran's conditions would have some impact, but did not explain whether that impact actually prevented substantially gainful employment. Further, VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also 38 C.F.R. § 3.326(a) (2012). As stated above, the most recent general examination that took into account all of the Veteran's service-connected disabilities within the context of employability was in November 2008, over four years ago and the examination for the spine in January 2010 was a little over three years ago. The Veteran has indicated in his May 2009 NOD and March 2011 Board hearing that his condition has worsened, as pain has increased and he has been prescribed additional medications. As such, the Board finds that the previous VA examinations are not current enough to adequately assess the Veteran's current condition. Id. Accordingly, the Board finds that a new VA examination to assess the Veteran's service-connected conditions as they relate to his employability is necessary due to both the inadequacy and remoteness of the two prior examinations. Additionally, as this case must be remanded for the foregoing reason, any recent VA treatment records should also be obtained. The Board observes that the Veteran has received VA treatment for his back, knee, and hip conditions and that records of his VA care, dated since August 2010, have not been associated with the claims file. VA should obtain updated records of treatment. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his service-connected disabilities since August 2010. Appropriate efforts must be made to obtain all outstanding VA treatment records. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. Regardless of any response obtained from the Veteran, obtain VA treatment records dated since August 2010 from the VA Medical Center pertaining to any treatment the Veteran received for his service-connected disabilities. 2. Appropriate requests must be made to attempt to obtain any relevant records related to the work injury referenced in the October 2008 letter from S.R. and to obtain any records related to the Veteran's participation in VA Vocational Rehabilitation. If the records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. After any new evidence has been associated with the claims file, the Veteran should be afforded an examination to determine whether the Veteran, based on his work history, level of education, and service-connected disabilities, but not his age or any nonservice-connected disability, is unable to secure or follow a substantially gainful occupation. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ M. N. HYLAND Acting 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).