Citation Nr: 1312396 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-02 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In October 2011, the Board remanded the Veteran's claim of entitlement to TDIU to the Appeals Management Center (AMC) for further evidentiary development, including obtaining additional VA treatment records and providing the Veteran with a VA examination and opinion, with complete rationale, to address the effects of his service-connected disabilities on his employability. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, after reviewing the current record, the Board finds that the AMC has not complied fully with the October 2011 remand directives, as is discussed more fully in the following remand. As such, the Veteran's claim for TDIU must be remanded again. Stegall, supra. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the Veteran's claims file, the Board finds that further evidentiary development is necessary prior to the adjudication of his claim for TDIU. The Board sincerely regrets the delay caused by this additional remand but finds that the development requested herein is necessary prior to a final adjudication of the Veteran's appeal. In the October 2011 remand, the AMC was instructed to provide the Veteran with a VA examination and medical opinion to address the effect of his service-connected disabilities on his employability. The AMC/examiner was specifically directed that "[a]ll opinions provided must include an explanation of the bases for the opinion." See BVA remand directive #2, October 2011. The Veteran was afforded a VA examination and opinion in November 2011. The examiner concluded that none of his service-connected disabilities affected his employability. However, the examiner did not provide a rationale or any bases for his conclusions, as directed in the Board's remand. As such, the Board finds that the November 2011 VA examination and opinion fails to comply with the Board's October 2011 remand and is inadequate to decide the claim. See Stegall, supra; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, the Board's review of the Veteran's electronic claims file reveals that he has been granted service connection for posttraumatic stress disorder (PTSD) and assigned a 70 percent evaluation for this disability, effective January 31, 2012. However, the November 2011 VA examiner did not address this newly service-connected disability and its effect, if any, on the Veteran's employability. It also appears that this grant of service connection was based on a July 2012 VA examination. Although this VA examination is referenced in a September 2012 rating decision, there is no copy of the examination report in the Veteran's paper or electronic claims file. On remand, this examination report, and any other relevant documents, must be associated with the claims file before scheduling the Veteran for a new VA examination. As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim for TDIU must be remanded for new VA examination and opinion. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any temporary claims file or other documents relating to the Veteran's PTSD claim, including the above-referenced July 2012 VA examination report. 2. Thereafter, schedule the Veteran for a VA examination to determine the effect of his service-connected disabilities, including his newly service-connected PTSD, on his employability. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. That such a review took place must be noted in the examination report. The examiner should opine as to whether the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities. S/he should provide an opinion for the period without regard to any PTSD symptoms prior to January 31, 2012 and including any PTSD symptoms from January 31, 2012 to the present. A complete rationale must be provided for any opinion offered. 3. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to TDIU should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. Failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2012).