Citation Nr: 1314158 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-29 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for acquired psychiatric disability, to include generalized anxiety disorder and depression, claimed as secondary to service-connected right wrist disability. 2. Entitlement to an evaluation higher than 10 percent for service-connected degenerative joint disease of the right wrist, including on an extraschedular basis. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) by reason of service-connected disability, including on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from April 1956 to August 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and October 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to carpel tunnel syndrome as secondary to service-connected right wrist disability been raised by the record during the Video Conference hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See June 2011 Video Conference hearing at page 7. Therefore, the Board does not have jurisdiction over it, and it is referred 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). In June 2011, the Veteran testified at a hearing before the undersigned using video-conferencing technology. A transcript of the proceeding is of record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. During the adjudication of the Veteran's increased rating claim for the right wrist, the issue of entitlement to TDIU has in fact been raised by the Veteran, specifically in his June 2009 statement. In light of the holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claim and has incorporated it as an issue on appeal. 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 VA records The October 2012 Board remand noted that no private or VA treatment records were associated with the claims file since November 2009. The Board stipulated that the AMC/RO should obtain all pertinent treatment records. The AMC sent a letter asking the Veteran to submit the names and addresses or any necessary authorization to enable VA to obtain any records pertaining to his claimed disabilities. The Veteran did not respond. As to the Veteran's VA treatment records, the VA had an obligation to obtain all VA treatment records. The February 2013 supplemental statement of the case noted that the Appeals Management Center reviewed VA treatment records from August 2000 to December 2012. These records are not associated the claims file or uploaded to virtual VA. To date, several VA treatment records are outstanding. For instance, during the June 2010 VA psychiatric examination, the examiner noted mental health treatment in April 2010 and May 2010. These records are not included in the claims file. Furthermore, the Veteran reported during the June 2011 Board hearing that he had received treatment at the Rock Hill Outpatient Clinic for his right wrist in March 2011. VA has a duty to obtain all pertinent VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Before the Veteran's claim can be adjudicated, all pertinent VA records should be obtained from the Rock Hill Outpatient Clinic and the Durham VA Medical Center and associated with the claims file or uploaded to Virtual VA. The United States Court of Appeals for Veteran Claims has stated that compliance by the Board or the RO is neither optional nor discretionary. 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, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required in this case. VA examination clarification The Veteran was afforded a VA examination for his right wrist in January 2013. The examiner did not include a rating for muscle strength following wrist extension for the right wrist. See January 2013 VA examination at page 6. The examiner also provided an opinion as to individual unemployability. The examiner states that the Veteran's right wrist condition would preclude essentially any physical or sedentary work because he cannot hold items with his left hand, and the range of motion of the right wrist is severely limited. The examiner should clarify if he meant to refer to the Veteran not being able to hold objects in his right hand instead of his left hand. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). The examiner should also be asked to clarify whether the Veteran precluded from securing and maintaining substantially gainful employment solely and exclusively as a result of his service-connected right wrist disability. Consideration of referral of extraschedular consideration for increased evaluation for degenerative joint disease of the right wrist During the January 2013 VA examination, the Veteran reported that he could not hold anything in his right hand. The examiner also noted that the Veteran's right wrist range of motion was severely limited and this precluded him from essentially any physical or sedentary work. The Veteran testified during the June 2011 Board hearing that he was unable to pick up anything. See June 2011 Board hearing, page 5. The Veteran and his representative noted during the hearing that the rating code was not sufficient for the current level of disability of his right wrist. Id. at 14. The AMC/RO should adjudicate whether a referral is needed for an extraschedular evaluation for the Veteran's right wrist disability. If the AMC/RO finds that a referral is necessary, this case must be referred to the Director of Compensation and Pension Service for consideration of an extraschedular rating in accordance with 38 C.F.R. § 4.16(b). TDIU referred for extraschedular consideration The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. During the adjudication of the Veteran's increased rating claim for the right wrist, the issue of entitlement to TDIU has in fact been raised by the Veteran, specifically in his June 2009 statement. In light of the holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claim and has incorporated it as an issue on appeal. TDIU may be awarded on either a schedular basis or an extraschedular basis. With respect to a schedular TDIU award, a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). In this case, service connection is in effect for degenerative joint disease of the right wrist, evaluated as 10 percent disabling. As such, the Veteran's disability does not meet the criteria for consideration of TDIU on a schedular basis at any time during the period under review. During the January 2013 VA examination for the right wrist, the examiner opined that the Veteran's right wrist disability precluded any physical or sedentary work as he cannot hold objects with his hand and the range of motion was severely limited. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director of the Compensation and Pension Service for extraschedular consideration. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Veteran has not yet been notified as to how to substantiate a claim for TDIU. As such, details of the Veteran's unemployability, including previous work experience and special training, have not been obtained. As the issue of TDIU has may require further development based on what information the Veteran submits, the Board finds that this issue must be remanded prior to its consideration of the issue. The AMC/RO should adjudicate the issue of TDIU, to include as to whether referral for extraschedular evaluation is warranted. 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 all VA records from Rockville Outpatient Clinic and Durham VA Medical Center in Columbia, South Carolina from August 2000 to December 2012, including records dated in April 2010 and May 2010 for mental health and a record dated in March 2011 for treatment of the right wrist. Associate them with the claims file or upload them to Virtual VA. 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. 2. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 3. Ask the examiner who conducted the January 2013 examination of the wrist for an addendum opinion to answer the following questions: a. What is the rating for muscle strength following wrist extension for the right wrist? See January 2013 VA examination at page 6. b. In your opinion regarding individual unemployability, you stated that the Veteran's right wrist condition would preclude essentially any physical or sedentary work because he cannot hold items with his left hand, and the range of motion of the right wrist is severely limited. Please clarify if you meant to refer to the Veteran not being able to hold objects in his right hand instead of his left hand. See January 2013 VA examination at page 8. c. Please clarify whether the Veteran is precluded from securing and maintaining substantially gainful employment solely and exclusively as a result of his service-connected right wrist disability. The examiner should provide a detailed rationale for his answer. If the January 2013 examiner is not available, provide the Veteran another VA examination in order to determine the nature and extent of all impairment due to his service-connected right wrist disability. The claims file and a separate copy of this remand must be provided to the examiner for review. The examiner should note in the examination report that he or she has reviewed the claims folder. The AMC/RO should also ensure that the examiner provided all information required for rating the Veteran's service-connected right wrist disability, to include an opinion as to whether it is sufficient by itself to render the Veteran unemployable. The rationale for all opinions expressed must also be provided. 4. Only after the above development has been completed, adjudicated the issue of entitlement to service connection for a psychiatric disability. 5. Only after the above development has been completed, adjudicate the issue of the right wrist disability, to include as to whether referral for extraschedular evaluation is warranted. If referral is warranted, the case should be referred to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation on the basis of the evidence of record, including the January 2013 VA examination report for the right wrist and any addendum; in accordance with 38 C.F.R. § 4.16(b). 6. Only after the above development has been completed, adjudicate the issue of TDIU to include as to whether referral for extraschedular evaluation is warranted. If referral is warranted, the case should be referred to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b). 6. If the benefits sought on appeal are not granted, the RO should issue the Veteran and his representative a supplemental statement of the case and provide them an opportunity to respond. If otherwise in order, return the Veteran's VA claims folder to the Board. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ MICHAEL A. PAPPAS 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).