Citation Nr: 1319029 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 05-39 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from February 1954 to January 1956. In an October 2011 remand, at which time the issue on appeal was entitlement to an increased rating for a lumbar spine disability, the Board found that a claim for TDIU was raised by the record and took jurisdiction of the claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim was remanded in October 2011 and November 2012. 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). 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 contends that he is unable to work due to his service-connected disabilities. He is currently service-connected for a lumbar spine disability, to include DDD, evaluated as 40 percent disabling; right lower extremity radiculopathy, evaluated as 20 percent disabling; left lower extremity radiculopathy, evaluated as 20 percent disabling; right ileoinguinal nerve neuralgia; evaluated as 10 percent disabling; and impotence and lumbar spine residual scar, both evaluated as noncompensable. His combined disability evaluation is 70 percent. See 38 C.F.R. § 4.25. Thus, the Veteran meets the minimum schedular criteria for consideration for the grant of TDIU pursuant to 38 C.F.R. § 4.16(a). The claim has been remanded on two prior occasions to obtain an adequate medical opinion on the question of employability. The most recent examination was conducted in February 2013 after which the examiner supplied a diagnosis of multilevel degenerative disc disease and facet arthropathy. The examiner did not provide diagnoses pertaining to the Veteran's other service-connected disabilities or comment on the effect, if any, of these disabilities on the Veteran's ability to obtain and retain employment. In an addendum to that examination, the examiner again commented that the Veteran's unemployability was due to a combination of his non-service-connected disorders and his service-connected back disability. She added his cognitive impairments played a significant role, and that the Veteran, based solely on his back trouble, would not be unemployable. Unfortunately, that opinion is inadequate because it did not include consideration of all of the Veteran's service-connected disabilities. Further complicating the need for opinions is that service connection and separate 20 percent ratings for bilateral lower extremity radiculopathy was granted in May 2013, subsequent to the VA examination. These newly service-connected disabilities have not been considered as yet within the context of the Veteran's TDIU claim. As a new examination in this case needs to occur anyway, consideration of these lower extremity disabilities must be included. The Board also notes that VA treatment records dated from October 2011 to December 2012 were associated with Virtual VA in January 2013, but it is unclear whether the February 2013 examiner had an opportunity to review these records. Other VA records, dated most recently in April 2013, have also been associated within Virtual VA. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. The RO/AMC should schedule the Veteran for a VA examination to evaluate the status of ALL of his service-connected disabilities. The claims folder should be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities, (degenerative disc disease, lumbar spine; right lower extremity radiculopathy; left lower extremity radiculopathy; right ileoinguinal nerve neuralgia; impotence, and lumbar spine residual scar) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to secure or maintain substantially gainful employment in light of his service-connected disabilities. Consideration may not be given to the Veteran's age or to any impairment caused by non-service-connected disabilities. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. The Veteran is hereby notified that it is his responsibility to report for any scheduled 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 scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After undertaking any other development deemed appropriate, the RO/AMC should readjudicate the issue of entitlement to a TDIU based on the entirety of the evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for future review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. The appellant 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 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). _________________________________________________ M. E. LARKIN 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).