Citation Nr: 1320798 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 08-02 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder (claimed as herniated nucleus pulposus). 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans INTRODUCTION The Veteran had active service from October 1963 to December 1967. This matter comes before the Board of Veteran's Appeals (Board) on appeal from June 2004 and February 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board remanded the case for further development in September 2011. The case has since been returned to the Board for appellate review. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development. The Veteran's claim for service connection for a lumbar spine disorder was originally denied by the RO in a July 1993 rating decision. The Veteran appealed this decision, and the denial was confirmed by the Board in a May 1997 decision. Although the Veteran was provided notice of this decision and his appeal rights, he did not initiate an appeal of the Board's denial. Following an October 2001 claim, the RO again denied service connection for a lumbar spine disorder in a March 2002 rating decision. The Veteran was provided with notice of this decision and his appeal rights, but did not file an appeal. In Kent v. Nicholson, 20 Vet.App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The duty to notify requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements that were found insufficient in the previous denial. In the present appeal, the Veteran has not been advised of the reasons for the previous denial of his claim for service connection for a lumbar spine disorder. While the Veteran was informed of the regulations pertaining to new and material evidence in the March 2005 statement of the case, he has not been provided with the reason for the previous denial. Therefore, the Board finds that a remand is necessary in order to provide the Veteran proper notice. Further, in March 2005, the Veteran requested a personal hearing before a Decision Review Officer in connection with his lumbar spine claim. It does not appear from the record that any such hearing was held or offered to the Veteran. On remand, the Veteran should be scheduled for a hearing in accordance with his request. Finally, with respect to the Veteran's TDIU claim, in September 2011, the Board determined that a new VA examination and medical opinion was necessary for the purpose of determining whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. While the record reflects that the Veteran was afforded a VA general medical examination in November 2011 and a VA TDIU examination in September 2012, the opinions contained in these examination reports are inadequate. In this regard, the record reflects that the Veteran has been granted service connection for residuals of a shell fragment wound to the left flank, rated 40 percent disabling; posttraumatic stress disorder (PTSD), rated 30 percent disabling; a left flank scar, rated 10 percent disabling; and, scars of the lower extremities, neck, and behind the right ear, each evaluated as noncompensable (zero percent disabling). A combined 60 percent disability rating is in effect. However, upon review, both the November 2011 and September 2012 VA examiners considered the Veteran's service-connected and nonservice-connected disabilities when rendering an opinion. For example, the November 2011 VA examiner considered the Veteran's nonservice-connected lumbar spine and degenerative disc disease in finding that the Veteran could not partake in strenuous or vigorous physical employment and that only sedentary jobs would be feasible. He also did not address the impact, if any, of the Veteran's PTSD on his employment. Similarly, the September 2012 VA examiner appears to have considered all of the Veteran's service-connected and nonservice-connected physical and mental disabilities when rendering an opinion as to his employability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 312 (2007). Therefore, the Board finds that an additional VA examination and medical opinion is necessary for the purpose of determining whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), in compliance with the holding of Kent (cited to above). The notice should advise him that new and material evidence is required to reopen the claim for service connection for a lumbar spine disorder and explain what constitutes new and material evidence. The notice should also identify the bases for the previous denial. 2. The RO/AMC should take appropriate steps to schedule the Veteran for a hearing before a DRO at the RO. The Veteran should be provided with reasonable advance notice of the date, time, and location of his requested hearing. 3. The Veteran should be afforded a VA examination to determine the effect of his service-connected disabilities on his employability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the combined effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities are of such severity to result in unemployability. In rendering his or her opinion, the examiner should describe the functional impairment caused by the Veteran's service-connected disabilities and discuss how that impairment impacts physical and sedentary employment. It should be noted that consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history [,]' 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. In the event that the examiner cannot provide the requested opinion, the RO/AMC should determine whether an industrial survey can be provided instead. 4. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. After completing all indicated development, the RO should readjudicate the issues remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive SSOC and afforded a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ JESSICA J. WILLS 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 Court. 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).