Citation Nr: 1319951 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 06-21 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran had active service from March 1984 to July 1984 and from June 1988 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Fort Harrison, Montana. This matter was previously before the Board in September 2011, September 2012, and November 2012 at which time it was remanded for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In November 2012, the Board requested that an addendum to a March 2012 VA examination report be provided addressing whether the Veteran's medications for his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. The examiner was requested to review the claims file and provide a complete rationale for all opinions provided. In December 2012, an addendum was provided by the examiner who conducted the March 2012 VA examination. The examiner essentially stated that the medication the Veteran took for his service-connected headaches would not cause significant restrictions in non-sedentary or sedentary tasks. Unfortunately, the examiner did not provide a rationale, and did not discuss the Veteran's reports regarding the effects of the medication. As such, a remand is necessary in order to ensure that the opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). On remand, the Board requests that the VA examiner provide a thorough opinion explaining the impact or side effects of the medicine on his ability obtain and maintain substantially gainful employment. The examiner must consider the Veteran's reports and must consider the Veteran's prior education and employment history in determining whether his service-connected disabilities prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. The Board notes that the examiner should be cognizant that in Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the United States Court of Appeals for Veterans Claims (Court) discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): "It is clear that the claimant need not be a total 'basket case' before the Courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant." Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See, too, Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. If the same examiner is not available, the Veteran should be scheduled for a new VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall forward the claims file, to include a complete copy of this Remand, to the March 2012 VA examiner for an addendum opinion consistent with this remand. If the same examiner is unavailable, the Veteran shall be scheduled for a new VA examination to determine the combined impact his service-connected disabilities have on his ability to obtain and maintain gainful employment. The examiner should review the claims file and a complete copy of this Remand and note such review in the examination report. The examiner should specifically consider the Veteran's level of education and employment experience as a mechanic as well as his reports regarding his symptoms and medication side effects. The examiner is requested to provide an opinion as to whether the service-connected headache disability and service-connected left foot disability, and specifically the medications required to treat each, would together prevent the Veteran from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner must provide detailed reasons for the opinion offered. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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 2002 & Supp. 2012). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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).