Citation Nr: 1317997 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 06-18 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from September 1966 to September 1968 and from January 1991 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that the instant matter was previously before the Board in September 2011, at which time the Board remanded the issue of entitlement to a TDIU for further evidentiary development. The Appeals Management Center (AMC) re-adjudicated the matter and denied the claim by way of a January 2013 supplemental statement of the case (SSOC). As discussed in further detail below, the Board finds that another remand is necessary for the agency of original jurisdiction (AOJ) to comply with the terms of the September 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board further notes that in an April 2013 Informal Hearing Presentation, the Veteran's representative alleges "clear and unmistakable error [(CUE)] in the denials of service connection for a lumbar spine disability beginning with the September 18, 1992[,] rating decision." As the issue of whether the September 1992 RO decision is the product of CUE has not been adjudicated by the AOJ, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 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's duty to assist includes the duty to provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C.A. § 5103A(d) (West 2002). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4) (2010). Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall, supra. In September 2011, the Board remanded the matter on appeal for the AOJ to provide the Veteran with a VA examination for the purpose of determining whether he was unemployable on account of his service-connected disabilities. The remand directed the VA examiner to provide a definite opinion as to whether the Veteran's service-connected disabilities combined to render him unable to secure or follow a substantially gainful employment. In October 2011, the AOJ obtained from an examiner who was noted to have previously examined the Veteran in June 2011 an opinion regarding the occupational impact of his service-connected disabilities. The reviewer opined that the Veteran's unstable mood related to his posttraumatic stress disorder (PTSD) "can limit his capacity to interact effectively and on a sustained basis with other individuals decreasing his ability to obtain, perform, and secure financially gainful employment." The reviewer stated that her opinion was based on a review of the claims folder and medical records contained therein and her prior examination of the Veteran in June 2011, to include the psychiatric history taken as part of that examination. In November 2011, the Veteran was provided with a VA examination for the purpose of obtaining opinions regarding the occupational impact of his service-connected plantar calluses, hemorrhoids, and erectile dysfunction associated with PTSD. (The Board notes that while the Veteran's claim was previously pending before the Board, the RO issued a November 2010 rating decision wherein it granted service connection for erectile dysfunction, secondary to PTSD, and assigned a noncompensable evaluation. The RO also awarded entitlement to special monthly compensation.) In December 2012, the Veteran underwent another PTSD review examination. The examiner noted that the Veteran had worked as an English teacher for 22 years, but had left employment in 1995 purportedly on account of his mental disorder and had not worked since that time. Overall, the examiner opined that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. However, the examiner also indicated that the Veteran's PTSD caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Upon review of the record and the development undertaken on remand, the Board finds that the matter must again be remanded to ensure compliance with the terms of the previous remand and so that the Board's evaluation of the instant matter is a fully informed one. At the outset, although individual opinions were obtained concerning whether the Veteran was unemployable due to any single service-connected disability, it does not appear as though any examiner considered the cumulative effect of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment. Further, the October 2011 reviewer's opinion does not answer the question posed. Although the reviewer determined that the Veteran's PTSD decreased his ability to obtain and maintain substantially gainful employment, the reviewer did not provide a definite opinion regarding whether or not the Veteran was indeed employable. Accordingly, the Board finds that the medical opinions obtained on remand are neither complaint with the terms of the September 2011 remand nor adequate for evaluation purposes. See Barr and Stegall, both supra; 38 C.F.R. § 3.159(c)(4) (2012). Furthermore, a review of the Veteran's claims folder, to include his Virtual VA folder, fails to reveal the report of a June 2011 VA examination. It is clear, however, that such examination took place, as the Veteran's Virtual VA file contains a February 2012 rating decision wherein the Veteran was denied an increased rating for his service-connected PTSD based on the June 2011 VA examination report. As noted above, while the instant matter was previously pending before the Board, the RO issued a rating decision wherein the Veteran was granted service connection for erectile dysfunction. That rating decision, which is contained in the Veteran's Virtual VA file, references the creation of a temporary file. Although it is not clear whether the June 2011 examination report contained an opinion regarding the Veteran's employability, given that the reviewer based her October 2011 opinion, at least in part, on findings made during that examination, the Board finds that in order to make an independent review of the Veteran's claim all records relied upon by the VA reviewer must be obtained and included in either the Veteran's paper claims folder or in his Virtual VA file. Accordingly, on remand, the AOJ should obtain and associate with the record the report of the June 2011 VA examination and any existent temporary file. See 38 U.S.C.A § 5103A(b)(1) (West 2002). Accordingly, the case is REMANDED to the AOJ for the following action: 1. Locate and associate with the claims file (paper or paperless) the report of the June 2011 VA examination and any temporary folders that are being maintained at the RO on behalf of the Veteran. 2. Thereafter, request that the examiner who conducted either the June 2011 or the December 2011 examination of the Veteran, if either examiner is still available, provide an addendum that specifically considers the effect of the Veteran's service-connected PTSD, in combination with his service-connected plantar calluses, hemorrhoids, and erectile dysfunction, on his employability. The examiner should again review the claims file, to specifically include this remand and all previous examination and opinion reports. The examiner should then provide a definite opinion as to whether the Veteran's service-connected (1) PTSD; (2) plantar calluses; (3) hemorrhoids; and (4) erectile dysfunction associated with PTSD combine to make him unable to secure or follow substantially gainful employment consistent with the Veteran's education and occupational experience. Regardless of whether the examiner's opinion is favorable or negative, the examiner must provide support for any opinion rendered that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming the requested opinion. The opinion report should include a discussion of the evidence of record suggesting that the Veteran left employment as a teacher due to his mental disorder, as well as records from the Social Security Administration showing that the Veteran was found to be disabled due to PTSD. The examiner should indicate why this evidence does or does not support a finding of unemployability. If the examiner finds that the Veteran is employable, the examiner should comment specifically on the type of employment that the Veteran is capable of, consistent with the Veteran's education and occupational experience. If the VA examiner if determines that the requested addendum opinion cannot be provided without re-examining the Veteran, the AOJ should schedule the Veteran for a VA examination in connection with the claim. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) If the VA examiner determines that the requested opinion cannot be because the examiner is not qualified to consider the cumulative effects of the Veteran's service-connected disabilities, or in the case that neither the June 2011 or December 2012 examiner is still available, the matter should be referred to another VA examiner or qualified expert (such as one with expertise in adjudging the effects of disability on occupational tasks) to make such an assessment. The entire claims file should be reviewed and the questions regarding employability noted above should be addressed. If this cannot be done without examination, examination(s) should be scheduled as required. 3. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request, especially with respect to the request that the VA examiner must consider the combined effects to the Veteran's service-connected disabilities on his occupational functioning. If any report is insufficient, it must be returned to the examiner or reviewer for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).