Citation Nr: 1312084 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 06-37 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active military service from February 2001 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. This matter was previously before the Board in December 2009, February 2011, and most recently in September 2012 when it was remanded for further development. Unfortunately, the appeal is again 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 Veteran seeks entitlement to a TDIU. He is currently service connected for the following disabilities: postoperative herniated disc at L4-5 and L5-S1, currently rated as 10 percent disabling; gastroesophageal reflux disease, currently rated as 10 percent disabling; and migraine headaches, currently rated as noncompensable. His combined evaluation for compensation is 20 percent. In its September 2012 remand instructions, the Board directed that the Veteran be scheduled for a VA medical examination to determine whether all his service-connected disabilities, considered in combination, rendered him unemployable. Significantly, the Board acknowledged that the Veteran was self-employed as a pressure washer, and that he missed work about fifteen to twenty times per year but that an assistant made up for these absences. The VA examiner was requested to provide a complete rationale for his opinions, as a matter of medical probability, based on his clinical experience, medical expertise, and established medical principles. Pursuant to the Board's remand instructions, the Veteran was afforded a VA examination in October 2012. After conducting a brief examination of the Veteran, the examiner concluded that since the Veteran worked full-time as a pressure washer technician, his service-connected disorders, either individually or in totality, did not preclude employment. No additional rationale was provided. Further, while physical examination findings relative to the low back disability were provided, no findings or functional impairment attributable to the Veteran's service-connected gastroesophageal reflux disease (GERD) or headaches, were noted. As such, the examination report is inadequate as to the functional impact of the Veteran's service-connected disabilities considered in combination. In this regard, although the Veteran reported he continues to be self-employed as a pressure washer technician, he has also reported significant time lost from work due to the service-connected disabilities. As such, it remains unclear whether the Veteran's service-connected disabilities, in combination, render him unable to engage in substantial gainful employment. Therefore, the Board finds that the rationale articulated by the October 2012 VA examiner is inadequate. If VA provides the claimant an examination in accordance with the duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, the claim must be remanded for a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether he is unable to secure or follow a substantially gainful occupation as a result of all service-connected disabilities considered in combination. The examiner must review the claims file and note that review in the report. The examiner must elicit from the Veteran and record for clinical purposes all manifestations of the service-connected low back, GERD, and headache disabilities, and their functional impairment considered in combination. A full work and educational history, to include the Veteran's frequency of absences from his current job as a result of impairments attributable to his service-connected disabilities, must be elicited. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities alone preclude him from securing and following a substantially gainful occupation. The examiner is instructed to provide the opinion considering the Veteran's level of education, prior work experience, and training, etc., but not his advancing age or any impairment attributable to disabilities that are not service connected. If the Veteran is found to be employable, the examiner should explicitly reconcile his reported work absences due to manifestations of the service-connected disabilities in combination, and explain what types of employment he could perform. A complete rationale for all opinions must be provided. 2. Then readjudicate the claim for a TDIU in light of this additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his attorney a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ U. R. POWELL 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).