Citation Nr: 1312420 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 00-04 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a stomach disorder, to include gastroesophageal reflux disease (GERD), to include as secondary to service-connected skin disabilities. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. 3. Eligibility for Vocational Rehabilitation (VR) services. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from March 1978 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2001 and March 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a September 2006 decision, the Board remanded these issues for further development. In July 2008, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. In September 2008, the Board denied the Veteran's claims. He appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court). In a September 2009 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion) and remanded the matters to the Board. In May 2010 the Board remanded the Veteran's case for further development consistent with the Joint Motion and it has now been returned to the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In a January 2013 statement, the Veteran informed VA that he was not represented and that he "wish[e]d to keep it that way." There are letters from the Veteran's former representatives indicating withdrawal of their representation. 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 While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. With regard to the Veteran's stomach disorder claim, while it was in remand status and after his May 2011 VA examination, VA treatment records indicated that his service-connected skin disabilities may aggravate his GERD. In July 2011, a VA dermatologist stated that the Veteran asked him if there was a connection between his skin conditions and his GERD. The dermatologist informed the Veteran that he knew of no such connection "except that our treatment of the folliculitis and facial cysts may very well exacerbate the GERD." In September 2011, Dr. C. M., a VA physician, stated that the doxycycline the Veteran takes for his service-connected skin conditions "may aggravate" his GERD. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. In this case, and addendum opinion is required because the VA treatment records noted above meet the low threshold for what constitutes an "indication." The opinion must address whether the Veteran's service-connected skin conditions cause or aggravate his GERD. With regard to the Veteran's TDIU and VR claims, he is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). For the reasons discussed below, the Board finds that there was not substantial compliance with the Board's May 2010 remand directives. The Joint Motion required the RO to schedule the Veteran for new examinations. The RO substantially complied with the directive to provide psychiatric, stomach, and skin examinations. However, the May 2010 remand also directed the RO to provide an examination wherein the examiner would opine as to whether the Veteran's service-connected disabilities precluded employment consistent with his education and educational expertise. With regard to his VR claim, a veteran is entitled to a rehabilitation program under Chapter 31 in part if he has a service-connected disability rated as 20 percent or more that was incurred or aggravated in service on or after September 16, 1940, and is determined by VA to be in need of rehabilitation because of an employment handicap. 38 C.F.R. § 21.40(a)(1), (b) (2012). The examination for his TDIU claim would also provide information relevant to his VR claim, as the current evidence of record does not show whether the Veteran is in need of a rehabilitation program due to an employment handicap. The record does not show that the Veteran underwent an examination to determine whether his service-connected disabilities precluded him from securing and maintaining substantially gainful employment. The May 2011 examiner commented on the impact of the Veteran's psychiatric and skin disabilities on his ability to work but the remand asked for specific findings. First, the examiner was asked to opine as to whether, notwithstanding his age or impairment from non-service-connected disabilities, his service-connected disabilities rendered him unemployable. Second, the examiner was asked to specifically address what impact his service-connected disabilities had on his ability to perform routine tasks of employment. Lastly, the examiner was asked to provide a rationale for all opinions rendered. The Board's remand directed that the Veteran undergo an examination specifically for his TDIU and VR claims, and this was not accomplished. Further, the three findings discussed above were not made by the May 2011 examiner, nor is it evident that the Board's remand directive was communicated to her. On remand, an examination to determine whether the Veteran is unemployable must be provided. 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. Return the Veteran's claims file to the examiner who conducted the May 2011 examination. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the examination is to determine whether the Veteran has GERD that is secondary to or aggravated by his service-connected skin conditions. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) With respect to the review of the claims file, the Board calls the examiner's attention to the following: i) A July 2011 VA dermatology record where the physician stated that treatment for the Veteran's skin conditions may exacerbate GERD. ii) A September 2011 statement from Dr. C. M. indicating that doxycycline may aggravate GERD. c) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. d) The examiner must provide an opinion as to whether the Veteran's GERD is secondary to or aggravated by his service connected skin conditions. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. f) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 2. Schedule the Veteran for an examination with an appropriate clinician. The purpose of the examination is to determine whether it is as least as likely as not (a probability of 50 percent or greater) the Veteran's service connected disabilities render him unemployable. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must provide an opinion as to whether the it is at least as likely as not (a probability of 50 percent or greater) that, notwithstanding the Veteran's age or any impairment from non-service-connected disabilities, the Veteran's service-connected disabilities render him unable to obtain or retain substantially gainful employment. d) The examiner should specifically address what impact the service-connected disabilities have on his ability to perform routine tasks of employment and the functional impact caused by those disabilities. e) The examiner must discuss any employment handicap the Veteran may possess as a result of his service-connected disabilities. f) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. g) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ KELLI A. KORDICH 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).