Citation Nr: 1315700 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-06 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability evaluation based on individual unemployability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to July 1980. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a February 2008 rating decision of the VA Regional Office in St. Petersburg, Florida that denied entitlement to a total disability evaluation based on individual unemployability. The Veteran was afforded a Travel Board hearing in November 2010 before a Veterans Law Judge who subsequently retired from the Board. The transcript is of record. The case was remanded for further development by Board decision in February 2011. VA laws and regulations require that the Veterans Law Judge who conducts a hearing must also participate in the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Since the Veterans Law Judge who convened the 2010 hearing is no longer available, the Veteran was offered the opportunity to appear for another hearing, by letter dated in March 2013. The appellant, however, has not responded and more than 30 days after the letter was sent to him. Hence, the Board finds that he does not desire to testify before a new hearing. The Board will, of course, consider the testimony and any evidence presented at the November 2010 proceeding. Following review of the record, 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 Veteran asserts that he is totally disabled and unable to obtain or engage in substantially gainful employment due to service-connected disabilities, and that a total disability evaluation based on individual unemployability is warranted. Pursuant to the Board's February 2011 remand, the appellant was afforded a VA examination in August 2011 for individual employability evaluation purposes. At that time, the appellant was only service connected for coronary artery disease and hypertension, evaluated as 60 percent and 20 percent disabling, respectively. Those disorders were determined to not prevent him from maintaining some type of full-time sedentary employment. Since the August 2011 examination, however, VA by rating actions dated in November 2012 and January 2013, has granted entitlement to service connection for erectile dysfunction, evaluated as noncompensable; and for chronic focal and segmental glomerulosclerosis with proteinuria, anemia and renal osteodystrophy, associated with hypertension, evaluated as 60 percent disabling. The Veteran is in receipt of a combined disability evaluation of 80 percent. As indicated above, service connection has been established for additional disabilities since the Veteran was examined for unemployability purposes in 2011. VA's duty to assist requires that VA obtain an examination that includes an opinion as to what effect all of the Veteran's current service-connected disabilities have on his ability to work. See Friscia v. Brown, 7 Vet.App. 294, 297 (1994). As such, the record is not sufficiently developed at this time and must be remanded to schedule an examination to determine if unemployability is warranted. Additionally, the record reflects that the Veteran was scheduled for VA examinations in December 2012 to evaluate his service-connected anemia and renal osteodystrophy. However, the record indicates that he failed to report. In a letter dated in January 2013, the appellant explained that he was out of town for six weeks during the time he was notified and the date of the appointment, and was totally unaware of it until he got back. He requests that the examination be rescheduled. The Veteran's explanation for his failure to report for his appointments constitutes "good cause" such that he should be rescheduled for the requested VA examinations. See 38 C.F.R. § 3.655 (2012). As such, the case is also remanded for examinations for anemia and renal osteodystrophy in conjunction with the examination for a total disability evaluation based on individual unemployability. The Board would also point out that the most recent grants of service connection were based on VA examinations conducted in October 2012. Review of the record discloses, however, that the most recent supplemental statement of the case that was issued in February 2013 did not address the October 2012 examination findings or diagnoses in the adjudication of the claim for individual unemployability. Neither the Veteran nor his representative has waived consideration of this evidence by the agency of original jurisdiction and the Board cannot consider this evidence in the first instance. As such, the case must also be remanded for a comprehensive supplemental statement of the case. See 38 C.F.R. § 19.38(b)(3), 20.1304(c) (2012). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for examinations to evaluate the nature and extent of his coronary artery disease, and his chronic focal and segmental glomerulosclerosis with proteinuria, anemia and renal osteodystrophy, associated with hypertension. The claims folder and access to Virtual VA must be made available to the examiners. All indicated tests and studies should be conducted and clinical findings should be reported in detail. In addition to completing the disability benefits questionnaire pertaining to these disorders, the examiners are requested to provide a jointly prepared opinion addressing whether it is at least as likely as not that the Veteran's service-connected disabilities, either alone or in combination, render him unable to secure or follow a substantially gainful occupation. A complete rationale must be provided for any opinion offered. 2. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examining physicians documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 3. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any ordered examination, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After taking any further development deemed appropriate, readjudicate the claim. If the benefit is not granted, issue a supplemental statement of the case before returning the case 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). 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). _________________________________________________ DEREK R. BROWN 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).