Citation Nr: 1312419 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-09 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to a total evaluation based on unemployability due to service-connected disabilities (TDIU). 2. Entitlement to service connection for gout (claimed as gout of the fingers and toes). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to June 1972 and from August 1974 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2006 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim of entitlement to TDIU and entitlement to service connection for gout of the fingers and toes, respectively. The Veteran appealed those decisions to the Board, and the claims were referred to the Board for appellate review. The record reveals that the Veteran requested a Travel Board hearing in conjunction with his TDIU claim. However, in a May 2007 statement, the Veteran asserted that he no longer wished to have such a hearing. The Veteran has not requested another hearing and, therefore, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In September 2007, the Board issued a decision denying entitlement to TDIU. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in an October 2008 Order, the Court vacated the September 2007 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Board subsequently remanded the Veteran's TDIU claim for further development in September 2009. Thereafter, the Veteran's TDIU claim was returned to the Board for further appellate proceedings. In March 2010, the Board again remanded the Veteran's TDIU claim because the RO failed to substantially comply with the Board's September 2009 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The RO subsequently took corrective measures, and the Veteran's TDIU claim was returned to the Board. In December 2010, the Board issued a decision which, inter alia, denied the Veteran's TDIU claim. The Veteran appealed the portion of the Board's December 2010 decision which denied his TDIU claim to the Court, and in an August 2011 Order, the Court vacated that portion of the Board's December 2010 decision and remanded the matter to the Board for development consistent with the parties' Joint Motion. The Veteran's TDIU claim was returned to the Board, and it again denied the claim in a March 2012 decision, as well as remanded a claim of entitlement to service connection for gout for additional development. The Veteran once again appealed the Board's denial to the Court, and in a December 2012 Order, the Court vacated that portion of the Board's March 2012 decision and remanded the matter to the Board for development consistent with the parties' Joint Motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 December 2010 Joint Motion found that the Board failed to provide an adequate statement of reasons or bases to support its conclusion that the Veteran was employable in a sedentary environment, especially in light of a March 2006 Social Security Administration (SSA) disability report which indicated that the Veteran became short of breath when being interviewed, seemed to fatigue 1.75 hours into the interview, and had trouble with memory and concentration toward the end of the interview. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the Veteran has an obligation to report for that examination. The law provides that TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). 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 (2012). Here, the Veteran is service connected for coronary artery disease with a history of myocardial infarction and ventricular fibrillation, which is currently rated as 60 percent disabling. The Board finds that the Veteran should be afforded an appropriate VA examination to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disability, with specific reference to the March 2006 SSA disability report showing shortness of breath, fatigue, and difficulty with memory and concentration. In addition, the Board's March 2012 decision remanded the issue of entitlement to service connection for gout (claimed as gout of the fingers and toes) so that the RO could obtain all identified outstanding records of VA treatment pertaining to the Veteran's gout and so that the Veteran could be scheduled for an appropriate VA examination to determine the nature and etiology of any diagnosed gout. To date, it does not appear as if all of the requested development had been completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the requested development of the gout claim must still be completed by the RO upon remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must obtain and associate with the claims file all identified outstanding records of VA treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. He should also be informed that he may obtain and submit these records himself. 2. Thereafter, the RO must schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed gout. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the partial service treatment records submitted by the Veteran. The VA examiner must note in the VA examination report that the Veteran's complete claims file was reviewed in connection with the examination. After the completion of above, the examiner must address the following: a. Does the Veteran have gout? b. If the Veteran has gout, the VA examiner must identify each body part which is affected by the Veteran's gout. c. For each body part that is affected by the Veteran's gout, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that such is the result of the Veteran's service, to include marching and physical activity associated with training. In forming the opinion(s), the VA examiner must consider the Veteran's complete medical history. To the extent possible, the examiner should allude to any records within the Veteran's VA claims file which are relied upon in reaching the opinion(s). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) In rendering the opinion(s), the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. The Veteran must be advised of the importance of reporting to the above-scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled VA examination must be included in the claims folder and must reflect that it was sent to the Veteran's last known address of record. If the notification is returned as undeliverable, this must also be included in the claims folder. 3. Lastly, the Veteran should be scheduled for an appropriate VA examination in order to determine whether he is unable to obtain or maintain substantially gainful employment due solely to his service-connected disabilities. A complete rationale must be provided for any opinion provided. In providing an opinion, the examiner is asked to consider and explicitly reference the March 2006 SSA disability report showing shortness of breath, fatigue, and difficulty with memory and concentration. The Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). 4. After completing the above actions and any other development that may be indicated by any response received as a consequence of the action taken in the paragraphs above, the Veteran's claims should be readjudicated. If any claim remains denied, a 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 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). _________________________________________________ L. M. BARNARD 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).