Citation Nr: 1319151 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-34 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). In written statements dated in March 2011, April 2011, September 2011, and March 2013, the Veteran raised the issues of entitlement to a rating in excess of 40 percent for chronic thoracolumbar strain and entitlement to a rating in excess of 30 percent for depression, not otherwise specified. As these claims have not been adjudicated by the RO, the Board does not have jurisdiction over them, and they are again referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. REMAND The Board's review of the claims file reveals that further development on the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is warranted. A longitudinal review of the record revealed that the Veteran filed a claim for entitlement to TDIU in May 2006. After his claim was denied in an October 2007 rating decision, the Veteran perfected an appeal. In June 2010, the Board remanded this matter to obtain updated treatment records and to afford the Veteran an examination to determine the effects of his service-connected disabilities on his ability to obtain and retain substantially gainful employment. Accordingly, the Veteran was afforded VA examinations in August 2010 to assess the severity of his service-connected thoracolumbar strain, depression, and tonsillitis, and the effect each had on his employability. The Veteran's claim was then re-adjudicated in an October 2010 supplemental statement of the case (SSOC) before being remitted to the Board for further appellate review. In February 2011, the Board remanded the Veteran's claim so that the RO could mail the October 2010 SSOC to the Veteran's correct mailing address and to afford the Veteran's representative the opportunity to submit additional evidence or argument on the Veteran's behalf. Thereafter, his TDIU claim was re-adjudicated in a May 2011 SSOC and in a June 2011 SSOC before being returned to the Board for further review. In August 2011, the Board remanded the Veteran's claim of entitlement to TDIU to afford the Veteran a single VA examination for the purpose of determining the impact of all of his service-connected disabilities, collectively, on his ability to obtain and maintain substantially gainful employment. Accordingly, the Veteran was provided VA examinations in October 2011 to address the aggregate effect of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment. Subsequently, a July 2012 SSOC continued the denial the Veteran's claim for entitlement to TDIU, and the matter was returned to the Board for appellate review. In October 2012, the Board most recently remanded the Veteran's claim of entitlement to TDIU to obtain an additional opinion with regard to the aggregate effect of the Veteran's service-connected disabilities on his employability. It was noted that the October 2011 VA examiner completed a general medical examination and found that the Veteran "worked an office job for about 11.5 hours. He sold cars for about 2 years, drove a tour bus for 6.5 years and worked as a security guard for 6 months. He has had some college." In July 2012, the RO requested that the same VA examiner that performed the October 2011 VA general medical examination provide a supplemental opinion. In a July 2012 response, the VA examiner opined that "none of the Veteran's service-connected conditions would render him completely unable to secure, and maintain, substantially gainful employment. This holds true for each of the disabilities alone, or an aggregate of all of the disabilities." Although the VA examiner addressed the salient issue presented by the Veteran's case, the Board found that VA examiner did not provide an adequate explanation as to how that conclusion was reached or state upon what evidence it was based. As such, the Board determined that the October 2011 VA examination and July 2012 addendum opinion were inadequate for purposes of determining entitlement to TDIU. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In an October 2012 VA medical opinion, the same examiner noted review of the evidence within the Veteran's claims files and commented that further testing or additional information was not deemed necessary for the opinion. Thereafter, the examiner opined that the Veteran's service connected conditions would not render him completely unable to secure, and maintain, substantially gainful employment. The examiner indicated that the Veteran's back condition could preclude him from heavy labor, as previously discussed in the October 2011 VA Back Disability Benefits Questionnaire (DBQ), but not from other forms of employment. The examiner simply noted that the Board refer to the October 2011 DBQ examination in the claims file for additional information. The examiner also commented that the Veteran's other service-connected conditions would not be expected to preclude any form of labor. A February 2013 SSOC continued the denial the Veteran's claim for entitlement to TDIU, and the matter was returned to the Board for appellate review. After reviewing the October 2012 VA medical opinion, the Board finds that the RO did not substantially comply with the October 2012 Remand directives. The October 2012 VA examiner blatantly disregarded the Board's clear request for a thorough rationale for any opinion expressed, to include citation to specific medical documents in the claims file and supporting clinical findings. Instead, the examiner provided essentially the same medical opinion with little to no rationale. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board finds the October 2012 VA medical opinion is insufficient and inadequate for appellate purposes, and therefore a remand is necessary for yet another VA examination and opinion to properly address the Board's Remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, pertinent VA treatment records from the VA Medical Center (VAMC) in Madison, Wisconsin, dated from April 2009 to October 2012 and from the VAMC in Milwaukee, Wisconsin, dated from October 2012 to November 2012 were added to the Veteran's Virtual VA file in November 2012. However, those records were clearly not considered in the February 2013 SSOC. The Veteran also has not submitted a waiver of RO consideration of this additional evidence. Accordingly, the RO must review the additional evidence received and issue an SSOC. 38 C.F.R. §§ 19.31, 20.1304 (2012). As noted above, the claims file reflects that the Veteran has received VA medical treatment for his service-connected disabilities from the VAMCs in Madison, Wisconsin, and in Milwaukee, Wisconsin; however, as the evidence of record only included searches for treatment records dated up to November 2012, any additional records from those facilities should be obtained. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). All outstanding VA records should be obtained and associated with the claims file. Finally, in a March 2013 statement recently associated with the record, the Veteran provided a new mailing address. The RO must send all documents to the Veteran's proper, current mailing address. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran at his current mailing address and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to TDIU. Regardless of the Veteran's response, the RO must obtain and associate with the claims file all of the Veteran's pertinent VA treatment records, to include all treatment records from the Madison VAMC and Milwaukee VAMC dated from November 2012 to the present. If, after making reasonable efforts to obtain this information the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded another VA examination by a different examiner than the examiner who completed the October 2011 VA general medical examination report as well as the July 2012 and October 2012 addendum VA medical opinions to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the 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 the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim on appeal, including all VA treatment notes added to the Veteran's Virtual VA file since November 2012. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).