Citation Nr: 1318476 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-05 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1976. This matter comes to the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2011 this matter was last before the Board at which time it was remanded for further development. 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 When this matter was last before the Board in June 2011 it was remanded to afford the Veteran VA examinations to address the effect his service-connected disabilities had on his ability to obtain and maintain substantially gainful employment. Following the Board's remand, examinations were obtained in this regard; however, none of them are adequate to address the Veteran's claim for a TDIU. In August 2011, the Veteran was afforded a general medical examination, which addressed his service-connected diabetes mellitus type II and associated peripheral neuropathy of the lower extremities, as well as several non-service-connected disabilities, namely, erectile dysfunction, benign prostatic hypertrophy, gastroesophageal reflux disease (GERD), hyperlipidemia, hypertension and a left shoulder disability assessed as full-thickness tear supraspinatus and infraspinatus left shoulder. The examiner did not find that any of these conditions would "hinder [the Veteran] from working," but for peripheral neuropathy, and the examiner only remarked that this condition would hinder the Veteran in extensive standing and walking due to chronic pains and burning sensations. Notably, in December 2011, it was clarified that the examiner had reviewed the pertinent records in rendering this opinion. In September 2011, the Veteran was also afforded a psychiatric examination to address his service-connected posttraumatic stress disorder (PTSD). The examiner assigned the Veteran a GAF score of 50, but related that the Veteran could not be considered "unemployable from a mental health standpoint," reasoning that he had retired from his latest job due to his left shoulder disability. The Veteran's assigned GAF score of 50 indicates serious occupational impairment. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (observing that GAF is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness" under the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS). See also Richard v. Brown, 9 Vet. App. 266, 267 (1996), observing that GAF scores ranging between 41-50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional ritual, frequent shoplifting), or any serious impairment in social, occupational, or school functions (e.g., no friends, unable to keep a job). The August and September 2011 opinions are inadequate to decide the claim. Each opinion addressed the wrong standard. The question is not to what extent the service-connected disabilities hinder the Veteran in working or whether they render him unemployable, but rather whether he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, both singularly and in combination with the others. Each opinion fails to address the relevant question. Accordingly, the examinations are inadequate and must be returned. 38 C.F.R. § 4.2. See also Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). In December 2011, the Veteran was also afforded an audiologic examination to address his service-connected tinnitus. The examiner did not address this condition, but rather opined on non-service-connected hearing loss, which he did not find rendered the Veteran unemployable, including as "within the confines of the Americans with Disabilities Act." In subsequent addenda, the examiner incomprehensibly explained that they could not "endorse a causal relationship between individual unemployability and this Veteran's assumption that tinnitus is just evidence to grant [IU]," noting that noise-induced hearing loss and tinnitus did not manifest immediately after noise exposure and that the Veteran had not alleged hearing loss or tinnitus soon after "the claimed noise exposure." The December 2011 audiologic opinion and its addenda are inadequate to address the issue of entitlement to a TDIU. The opinion and its addenda fail to address whether service-connected tinnitus, either alone or in conjunction with other service-connected disabilities, render the Veteran unable to obtain and maintain substantially gainful employment. Barr, supra. The addenda regarding causation of tinnitus is non-responsive to the question at hand, which is the effect tinnitus has on the Veteran's ability to obtain and maintain substantially gainful employment. As such, the examination report must be returned. 38 C.F.R. § 4.2. VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. Because these examinations and opinions fail in this regard, remand is required. Finally, the Board notes that the Veteran receives regular VA treatment and that the most recent records from these facilities are dated July 17, 2012. Thus, up-to-date treatment records should be obtained on remand. See 38 U.S.C.A. § 5103A(c) (West 2002) & Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records dated after July 17, 2012. Perform any and all follow-up as necessary, and document negative results. 2. After the development directed in paragraph 1 has been completed to the extent possible, the RO or the AMC should schedule the Veteran for a single VA examination to ascertain the impact of the Veteran's global disability picture related only to his service-connected disabilities on his ability to maintain substantially gainful employment. The claims file should be provided for the examiner's review in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities considered individually and in combination, but without reference to any non-service-connected disability, prevent him from obtaining and maintaining substantially gainful employment. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Then, after conducting any additional indicated development, readjudicate the claim currently on appeal. If the benefits sought on appeal remain denied, issue a Supplemental Statement of the Case and provide the appellant and his representative an appropriate period of time to respond before this case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).