Citation Nr: 1317540 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-39 473 ) 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 due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and her niece ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1943 to January 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Atlanta, Georgia RO. In November 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In January 2013, the case was remanded for additional development. In January 2013, the Board dismissed the claim for a rating in excess of 50 percent for an adjustment disorder with depressed mood. Consequently, this matter is not before the Board. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. Additional documents pertinent to this appeal in Virtual VA have been printed and associated with the physical claims file. Please note that 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 Veteran if action on her part is required. REMAND In its January 2013 remand, the Board instructed the RO to arrange for the Veteran to be examined by an appropriate physician to assess the cumulative impact that her service-connected disabilities would be expected to have on her employability (disregarding the effects of any disabilities that are not service-connected). The RO scheduled the Veteran for a VA general medical examination in January 2013, and for a VA mental disorders examination in February 2013. Both examiners were asked to answer the following questions (pursuant to the Board's January 2013 remand instructions) and to explain the rationale for all opinions in detail: (a) Please discuss the functional limitations associated with, and expected impact on employment resulting from, each of the Veteran's service-connected disabilities (an adjustment disorder with depressed mood associated with residuals of gall bladder removal (cholecystectomy) with post operative scars, rated 50 percent; residuals of gall bladder removal (cholecystectomy) with post operative scars, rated 30 percent; scar, right lower leg, rated 10 percent; and scar, left thigh, donor site for fascial graft, rated 10 percent). (b) Please discuss the functional limitations associated with, and expected impact on employment resulting from, the Veteran's service-connected disabilities cumulatively. It should be noted that the Veteran's employment experience has been described variously as that of a teacher, a teacher's assistant, and social worker, and that a May 2006 VA examination report notes she has a Master's degree in Social Work. (c) Please identify the types of employment, if any, that would not be inconsistent with/precluded by the cumulative functional limitations due to the service-connected disabilities and opine whether the service-connected disabilities when considered together render the Veteran incapable of participating in any gainful employment consistent with her education and work experience. The January 2013 general medical examiner (a nurse practitioner) opined, based on the Veteran's combined service-connected disabilities of residuals of cholecystectomy with scars to the abdomen, right lower leg, and left thigh, that the Veteran is capable of securing and sustaining gainful employment to include sedentary and strenuous type work. The examiner noted that the Veteran has a Master's degree in social work and worked as a school teacher, teacher's assistant, and substance abuse therapist. The examiner opined that the Veteran is capable of continuing the same employment without restriction. The February 2013 mental disorders examiner (a clinical psychologist) opined that the Veteran's depression does not render her unemployable. The examiner further opined that it was the Veteran's dementia that renders her unemployable and unable to perform activities of daily living. (The Board notes that the Veteran is not service-connected for dementia.) Unfortunately, by obtaining two separate examinations, the RO did not fulfill the Board's January 2013 remand instruction to have an appropriate physician assess the cumulative impact that the Veteran's service-connected disabilities would be expected to have on her employability (disregarding the effects of any disabilities that are not service-connected). On remand, the Veteran should be scheduled for such examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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). Accordingly, the case is REMANDED for the following: (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 should arrange for the Veteran to be examined by an appropriate physician to assess the cumulative impact that her service-connected disabilities would be expected to have on her employability (disregarding the effects of any disabilities that are not service-connected). The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination (pertinent records in Virtual VA and not in the claims file should be printed and associated with the claims file if the examiner does not have access to Virtual VA). Based on review of the record (to include this remand) and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please discuss the functional limitations associated with, and expected impact on employment resulting from, each of the Veteran's service-connected disabilities (an adjustment disorder with depressed mood associated with residuals of gall bladder removal (cholecystectomy) with post operative scars, rated 50 percent; residuals of gall bladder removal (cholecystectomy) with post operative scars, rated 30 percent; scar, right lower leg, rated 10 percent; and scar, left thigh, donor site for fascial graft, rated 10 percent). (b) Please discuss the functional limitations associated with, and expected impact on employment resulting from, the Veteran's service-connected disabilities cumulatively. It should be noted that the Veteran's employment experience has been described variously as that of a teacher, a teacher's assistant, and social worker, and that a May 2006 VA examination report notes she has a Master's degree in Social Work. (c) Please identify the types of employment, if any, that would not be inconsistent with/precluded by the cumulative functional limitations due to the service-connected disabilities and opine whether the service-connected disabilities when considered together render the Veteran incapable of participating in any gainful employment consistent with her education and work experience. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as deemed appropriate. 2. The RO should ensure that the development sought is completed, and then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ GEORGE R. SENYK 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).