Citation Nr: 1319808 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 05-22 807 ) 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 due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active duty service from November 1980 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to TDIU. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2010; a transcript of that hearing is associated with the claims file. This case was previously before the Board in September 2010 and February 2012 when it was remanded for further development. The Veteran reported that he worked as a dock worker/dock mailhandler until February 15, 2008 for the United States Postal Service (USPS), at which time he left on disability retirement. August 2008 and November 2010 applications for TDIU, VA Form 21-8940, additionally show that he completed 4 years of high school education; however, a March 2012 TDIU application indicates that he only completed a 9th grade education. Also, the August 2008 TDIU application shows that he had claims for Worker's Compensation benefits pending, but the November 2010 and March 2012 TDIU applications note that the Veteran was not in receipt of Worker's Compensation benefits. The August 2008 and March 2012 TDIU applications note that the Veteran is in receipt of disability retirement benefits, but the November 2010 application indicates that he is not. He has averred generically that his service-connected disabilities make him unemployable in his November 2010 application, but specifically noted only his back in the more recent March 2012 application. In the August 2008 application, he noted his left knee (nonservice-connected disability), lumbar spine and left foot disabilities. A Request for Employment Information in Connection with Claim for Disability Benefits, VA Form 21-4192, dated November 2008, was received from the U.S. Office of Personnel Management, Retirement Operations Center, which noted that the Veteran was receiving a disability retirement as a result of his retirement from the USPS. The upper portion which would provide additional details with regard to the reasons for that disability retirement was left blank. The Board finds that a remand of this case is necessary at this time. First, in his August 2008 TDIU application, the Veteran reported that he had two claims pending for Worker's Compensation benefits. It does not appear that any attempts to obtain these records have been made. Thus, the claim must be remanded at this time so that such can be accomplished. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Additionally, the record is clear that the Veteran is receiving disability retirement benefits, but it is unclear on which disabilities the retirement from the USPS was based. On remand, the agency of original jurisdiction (AOJ) should attempt to clarify with the USPS or the US Office of Personnel Management the exact reason(s) for the disability retirement. The Board also notes that the Veteran underwent VA examinations of his service-connected disabilities in March 2012. On March 13, 2012, the Veteran underwent VA examination for all of his physical service-connected disabilities. A General Medical VA examiner opined that the Veteran's non-psychological disabilities did not combine to preclude substantially gainful employment that is consistent with his education and occupational work experience. The examiner reported that"[i]t is as likely as not that this Veteran is capable of performing non-strenuous, sedentary-type work." Even when read in context with the conclusion that it was less likely as not that non-psychological service-connected disabilities had combined to preclude substantially gainful employment, this latter statement regarding sedentary work is somewhat equivocal. The next day, the Veteran underwent a VA psychiatric examination, at which time he was given a global assessment of functioning (GAF) score of 70. The examiner noted that the Veteran arrived on time for his appointment and was alone. He was neatly dressed and well-groomed with fluent speech and normal articulation, rate and auditory comprehension. There was no indication of cognitive impairment, his thought processes were logical and goal-directed and he was without any behavioral indications of depression or anxiety; he had a full range of affect. The examiner noted that the Veteran had a mood disorder secondary to his chronic pain, but that his current symptoms were well controlled since he restarted his anti-depressant medication. His chronic sleep impairment was also reportedly well treated with his current medication. The Veteran stated that any limitations with regard to his activities of daily living were primarily related to his physical symptoms at that time since his mood had improved. The examiner therefore opined that it was less likely than not that the Veteran's service-connected mood disorder would preclude employment. While it does not appear to the Board that the Veteran's psychiatric disorder precludes employment and that the Veteran's main employment issues appear to be due to his physical disabilities, the Board notes that no single comprehensive opinion that addresses the cumulative effects of all his service-connected disabilities-both psychological and non-psychological-has been obtained. Moreover, there appears to some confusion about the Veteran's education and occupational experience levels, as noted in the TDIU applications mentioned above. While the Board acknowledges that an examiner opined that the Veteran would be able to do sedentary work and was not precluded from employment commensurate with his education and occupational experience by his physical disabilities, the Board notes that no actual discussion with regards to the Veteran's education and past occupational experience was provided with regards to his employability. In other words, it is not clear that full consideration was given to the Veteran's occupational experience and education level when the opinions regarding employability were made. More specifically, the Board notes that it appears that the Veteran is minimally educated with either a 9th or a 12th grade education level, and his entire occupational experience appears to be as a physical laborer/dock worker with the USPS. Given the Veteran's noted restrictions in performance of physical activities, particularly limitations in lifting caused by his lumbar spine disability, and his level of education, an additional discussion regarding the feasibility of the Veteran's ability to do sedentary work as restricted by his physical service-connected disabilities is necessary. Accordingly, the Board is remanding for an additional VA examination with an occupational specialist/psychologist in order to obtain a comprehensive opinion regarding the Veteran's employability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Milwaukee VA Medical Center, or any other VA medical facility where the Veteran may have received treatment, since May 2012 and associate those documents with the claims file. 2. Ask the Veteran for information regarding any Worker's Compensation benefits claims he may have filed, including in which state(s) he filed. Then, obtain from any state the records pertinent to the Veteran's claim(s) for Worker's Compensation benefits, as well as the medical records relied upon in considering such claims. Any negative search should be noted in the record and communicated to the Veteran. 3. The AOJ should clarify with the relevant officials at the USPS or US Office of Personnel Management the reasons for the Veteran's disability retirement in February 2008, to include obtaining another VA Form 21-4192 as appropriate. Such clarification should include for which disabilities he is in receipt of disability retirement benefits. 4. Schedule the Veteran for a VA examination with an occupational specialist/psychologist. The examiner should review the claims file in conjunction with the examination. A detailed history of the Veteran's educational experience and occupational training and experience should be obtained. Following a claims file review and examination, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected mood disorder, lumbar spine disability with associated bilateral radiculopathy, left foot disability, and hypertension combine to preclude substantially gainful employment. The examiner must specifically address the Veteran's work qualifications and employment history, as well as his specific level of education. The opinion regarding employability should specifically contemplate whether any limits in education and/or training have any effect on the Veteran's ability to work, including sedentary work, given the effects of his service-connected disabilities. Any opinion rendered should be without consideration of his age or any nonservice-connected disorders. An explanation for each opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of entitlement to TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). _______________________________ MARK F. HALSEY 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 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).