Citation Nr: 1320211 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 11-00 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1944 to April 1950 and from June 1951 to September 1952. This matter was previously before the Board of Veterans' Appeals (Board) in December 2012 and April 2013; in each instance, it was remanded for further development. This matter comes before the Board on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran requested hearings in conjunction with each of his appealed issues, but that he withdrew those requests in September 2009. 38 C.F.R. § 20.704(e) (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 Most recently, in April 2013, the issue of entitlement to a TDIU was remanded to obtain an addendum opinion concerning the Veteran's employability, as the available opinion was inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). Although VA obtained an addendum opinion, that opinion failed to address the question the Board presented, and thus did not satisfy the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran is retired. He asserts that his retirement was due to disability. He has variously noted difficulty with his psychiatric disorder and difficulty breathing. A September 2011 examiner opined that the Veteran's service-connected disabilities "would preclude him from work that involves sustained light to moderate heavy labor, but does not preclude sedentary work." Records dated earlier in 2011 note that the Veteran thought he could return to work as an electrician, but for yearly lectures that would be required. It was noted that he had a position of leadership with a Veteran's Service Organization, and had been a County Commissioner, but that his term was ending. The Board determined that the September 2011 examiner's opinion was inadequate for rating purposes; the examiner failed to address whether the sedentary work that the Veteran was still physically capable of performing was consistent with his education and occupational experience. In the prior remand, the Board noted that the Veteran's primary profession historically was that of an electrician. Although not discussed in the April 2013 remand, it is of record that the Veteran finished high school, but did not attend college. The Board discussed the fact that although the September 2011 examiner's opinion was otherwise well-supported, he failed to address whether the Veteran was capable of obtaining or maintaining employment for which he was qualified. Because the opinion was inadequate for rating purposes, the Board requested that the RO/AMC obtain an addendum opinion from that examiner addressing the question of whether, considering his service-connected disabilities but not his age, the Veteran is capable of obtaining or maintaining employment for which he is otherwise qualified. In compliance with the remand instructions, the AMC returned the claims file to the examiner who provided the September 2011 opinion. In a May 2013 addendum, that examiner rehashed the impacts of the service-connected disabilities, as he had done in the September 2011 report, and then provided the following generic opinion: OPINION is that the Veteran is able to obtain or maintain employment due only to his service connected disabilities, consistent with his education and occupational experience, irrespective of age and any non-service connected disorders and that he is certainly capable of sedentary work as he does not have problems with sitting, and is able to drive. Unfortunately, the May 2013 addendum is essentially identical to the September 2011 opinion that the Board found inadequate for rating purposes. The examiner made a generic reference to work "consistent with his education and occupational experience," but ignored both the substance of the Veteran's educational and occupational experience, as well as the examiner's prior opinion that the Veteran was unable to perform "sustained light to moderate heavy labor." At no point did the examiner address the types of work he could perform other than the nondescriptive "sedentary" reference. Therefore, the Board must order a new opinion, from an examiner who has not yet addressed the Veteran's claim. 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. Submit the claims file to an examiner who has not yet addressed the Veteran's claim, but maintains similar qualifications to those of the examiner who conducted the September 2011 examination. The examiner must review the claims file and the Veteran's Virtual VA electronic record, and should indicate in the ensuing addendum that such a review occurred. Thereafter, the examiner should provide an opinion addressing whether the Veteran is able to obtain or maintain employment due only to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any non-service-connected disorders. In providing such an opinion, the examiner should consider and specifically address the fact that the Veteran is a high school graduate, and spent his career as an electrician, with other experience as a county commissioner and a leader in a Veteran's Service Organization. A full explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the report, and a full explanation provided for that conclusion. If a medical professional indicates that a new examination is necessary to address the questions presented, then the RO/AMC should schedule such an examination. If it is determined that a social and industrial survey is required to obtain the pertinent opinion, such survey should be scheduled. 2. After the development requested has been completed, the RO/AMC should review the opinion obtained to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented their consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant 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). 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). _________________________________________________ MICHAEL D. LYON 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).