Citation Nr: 1313055 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 05-13 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran had active service from August 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Because the Veteran currently lives within the jurisdiction of the RO in Atlanta, Georgia, that facility retains jurisdiction in this appeal. The Veteran appeared at a Travel Board hearing in February 2009, before the undersigned Veterans Law Judge, and a copy of the hearing transcript is of record. In June 2009, July 2011, and October 2012 the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In its June 2009 remand, the Board noted that the issue of whether an April 1972 rating decision, which granted service connection for residuals of fractures of both bones of the right forearm and assigned a 10 percent rating effective November 5, 1971, was the product of clear and unmistakable error (CUE) ("CUE claim") had been raised by the record. The Board referred this CUE claim to the RO/AMC for appropriate action. In its July 2011 remand, the Board noted that, in addition to the CUE claim, the issue of entitlement to service connection for a left elbow disability also had been raised by the record but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board then referred both of these claims to the RO/AMC for appropriate action. The claims were referred again in the October 2012 remand. To date, however, the RO/AMC has not taken any action on either of these referred claims. Therefore, the Board does not have jurisdiction over them and they are referred again to the AOJ for appropriate action. 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). Unfortunately, as explained below, 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 Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claim of entitlement to a TDIU can be adjudicated. The Veteran contends that his service-connected right wrist and right elbow disabilities prevent him from securing and maintaining substantially gainful employment, entitling him to a TDIU. Pursuant to the Board's July 2011 remand, the Veteran was scheduled for a VA examination to determine the impact of these service-connected disabilities on his employability. The Board specifically asked the VA examiner to provide a complete rationale for any opinion concerning the impact of these service-connected disabilities on the Veteran's employability. See Board remand dated in July 2011. Unfortunately, a review of the October 2011 VA Disability Benefits Questionnaire (DBQ) wrist conditions examination for the Veteran's service-connected right wrist disability shows that it is inadequate for purposes of evaluating the Veteran's TDIU claim. A review of this DBQ examination report, which the Board finds difficult to follow, shows that the VA examiner stated, "Veteran's right wrist condition would not preclude employability. His right wrist would interfere with working as a barber, but he has not worked as a barber in 9 years." No rationale was provided for this opinion. Subsequently, in October 2012, the Board remanded the claim for clarification from the October 2011 VA examiner. In October 2012, the VA examiner rendered an addendum opinion, however, it is also inadequate. As an initial matter, the examiner completed an inapplicable DBQ form. The DBQ completed in October 2012 regarded issues of entitlement to service connection, not TDIU. Regarding "direct service connection," the examiner selected the statement that "the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness." The examiner's rationale was that "[t]he Veteran had a January 1971 right wrist fracture. He successfully worked for 30 years after that incident. He now has multiple joint osteoarthritis unrelated to his healed right wrist fracture." The examiner also noted that the opinion "does not address unemployability related to his multiple non-service-related disabilities." The examiner did not offer any other opinion. The examiner's notation that the opinion does not address unemployability related to nonservice-connected disabilities could be an indication that the remainder of the opinion was intended to address unemployability related to service-connected disabilities. However, as the examiner's selected opinion expressly stated that it was with regard to direct service connection and did not discuss entitlement to TDIU, the Board cannot accept the opinion as an adequate opinion upon which to base a decision regarding TDIU. The Court has held that, when VA undertakes to provide a Veteran with an examination or opinion, that examination or opinion must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court also has held that an examiner must explain the basis for his or her opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Additionally, in Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Here, the VA examiner did not comply with the October 2012 remand orders and another addendum opinion is required. Given the foregoing, the Board finds that, on remand, the October 2011 VA examination report and October 2012 DBQ should be returned to the VA examiner who prepared them, for another addendum. The addendum should include an opinion regarding entitlement to TDIU. If the VA examiner's opinion remains the same as it was in October 2011, the addendum must include a complete rationale for the October 2011 opinion concerning the impact of the Veteran's service-connected right wrist disability on his employability. Next, in March 2013, the Veteran submitted additional evidence including VA outpatient treatment records dated in October 2012, without a waiver of review by the Agency of Original Jurisdiction (AOJ). These records were not considered by the RO in the most recent adjudication of the Veteran's claim in the February 2013 Statement of the Case (SOC). As the Veteran has not submitted a waiver of RO review, remand is necessary. 38 C.F.R. §§ 19.37(b), 20.1304 (c) (2012). Lastly, the Veteran's submission of additional VA outpatient treatment records regarding his right wrist is an indication that there may be outstanding VA treatment records regarding the service-connected disabilities for which the Veteran seeks entitlement to TDIU. As these records could be relevant to determining whether the Veteran is entitled to a TDIU, any outstanding treatment records regarding the service-connected right wrist and right elbow disabilities should be obtained. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). 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. Obtain any outstanding VA outpatient treatment records regarding the right wrist and right elbow, from the VA Medical Center in Atlanta, Georgia for the period from September 2011 to the present. Any negative response should be noted. 2. Following receipt of any outstanding records, contact the VA Medical Center in Atlanta, Georgia, and ask the VA examiner who conducted the Veteran's October 2011 VA Disability Benefits Questionnaire (DBQ) wrist conditions examination, as well as the October 2012 addendum, to provide another addendum to this examination report. The examiner should be provided with a DBQ regarding entitlement to TDIU, or simply asked to answer the questions below if a DBQ specifically intended for TDIU is not available. The claims file and a copy of this remand should be provided to the examiner for review. The examiner should review the file, including any new evidence added since the October 2011 VA examination, and determine whether the Veteran's service-connected disabilities alone preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. If the examiner's opinion remains unchanged from the opinion rendered in October 2011, the VA examiner should provide a complete rationale for his October 2011 opinion that the Veteran's service-connected right wrist disability does not preclude his employability. 3. If, and only if, the VA examiner who conducted the Veteran's October 2011, VA DBQ wrist conditions examination and October 2012 addendum is unavailable, then schedule the Veteran for a new VA examination which addresses the impact of his service-connected disabilities on his employability. The claims file and a copy of this remand should be provided to the examiner for review. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete employment history, if possible. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the impact of his service-connected disabilities on his employability, the examiner should opine as to whether the Veteran's service-connected disabilities alone preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. A complete rationale must be provided for any opinions expressed. The examiner is advised that service connection currently is in effect for residuals of a right ulna and radius fracture with limited motion of the right wrist and for limited motion of the right elbow, status-post ulna and radius fracture. The examiner also is advised that the Veteran contends that his service-connected disabilities preclude him from securing and following substantially gainful employment. 4. The Veteran should be given adequate notice of the requested examination, if scheduled, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if 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). _________________________________________________ MARJORIE A. AUER 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).