Citation Nr: 1321333 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 09-10 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Iowa Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from November 1965 to November 1969. The appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. As the Board noted in the introduction to that February 2013 remand, the issue of entitlement to service connection for sinusitis was raised by the record at a VA examination in July 2012. This issue has still not been adjudicated by the RO, and therefore, the issue of entitlement to service connection for sinusitis is once again referred to the RO for appropriate disposition. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In response to the Board's May 2012 remand, the Veteran was afforded a VA general examination in July 2012 to address the Veteran's service-connected disabilities in the context of his claim for entitlement to a total disability rating based on individual unemployability (TDIU). The general examiner provided an opinion of the impact of the Veteran's physical service-connected disabilities on his capacity for employment, specifically addressing whether these physical disabilities precluded gainful employment. However, the general examiner failed to consider the Veteran's service-connected pilonidal sinus. As such, there was substantial non-compliance with the Board's May 2012 remand, and the Board remanded the case in February 2013. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was accordingly afforded VA examinations again in April 2013, to address the Veteran's service-connected disabilities including his pilonidal sinus and his other service-connected disabilities, which include posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss, and to address the combined effect of these service-connected disabilities on employability. If distinguishable, the examiner addressing the Veteran's PTSD was to distinguish that disability from nonservice-connected psychiatric disability. The Veteran was afforded an April 2013 VA examination which addressed his pilonidal sinus. Another April 2013 VA examination addressed the Veteran's sinusitis, apparently in furtherance of his claim for service connection for sinusitis. However, the evidence of record does not reflect that this claim for service connection for sinusitis has been adjudicated by the RO. Nonetheless, a third April 2013 VA DBQ examination was afforded the Veteran to address the combined effects of service-connected disabilities, and in this examination the examiner considered as service-connected disabilities not only the Veteran's service-connected pilonidal sinus, tinnitus, and bilateral hearing loss, but also the Veteran's currently nonservice-connected sinusitis. Moreover, the examiner failed to consider the impact of the Veteran's service-connected PTSD in combination with these physical disabilities on the Veteran's employability. Additionally, the examiner opined that the Veteran was unemployable due to his PTSD and depression, as well as his nonservice-connected physical disabilities. Thus, not only did the examiner fail to attempt to differentiate the Veteran's service-connected PTSD from his nonservice-connected depression, but failed to differentiated it from other identified nonservice-connected disabilities. These differentiations were required by the Board's February 2013 remand. For all these reasons, the April 2013 VA examinations are deficient for purposes of adjudicating the Veteran's TDIU claim, and hence have substantially failed to fulfill the requirements of the prior Board remands, requiring remand once again. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the evidence of record by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded an appropriate VA examination by a qualified psychiatrist to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. (A psychiatrist is necessary because the examiner must be able to differentiate the Veteran's service-connected PTSD from nonservice-connected psychiatric disability, if differentiable, and must be able to address the impact of physical disabilities. A psychologist, lacking medical training, would not be qualified to address the severity or impact on employability of service-connected disabilities.) 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. Prior to the examination, the examiner must be provided with a list of the currently service-connected disabilities. 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 of PTSD, tinnitus, bilateral hearing loss, residuals of a pilonidal sinus, and any other currently service-connected disability, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of the Veteran's nonservice-connected disabilities or his age. The Veteran's PTSD was the subject of two recent VA psychiatric examinations for compensation purposes, in May 2011 and July 2012, with those examiners addressing the impact of the PTSD on employability. In contrast, the current examiner must consider the impact on employability of all the service-connected disorders together, including the service-connected PTSD, as well as the service-connected hearing loss, service-connected tinnitus, and the service-connected pilonidal sinus, and any additional disability or disabilities which are service connected at the time of the examination. The examiners of the previous psychiatric examinations expressly differentiated the impacts of the Veteran's PTSD from the impacts of another psychiatric disability, depression. These examiners attributed the Veteran's depression substantially to the Veteran's current significant nonservice-connected physical disabilities, and to his current economic, social, and employment circumstances, and not to the Veteran's service-connected PTSD. The current examiner must also exclude impacts of any psychiatric disability other than PTSD from consideration if the examiner finds that this differentiation may be made in this case. If any psychiatric disabilities other than PTSD cannot be differentiated from the PTSD in their symptoms and disabling impact, the examiner must so state, and those symptoms must be included in the determination as to whether all the service-connected disorders acting in concert result in the Veteran ability to obtain and maintain employment consistent with his education and occupational experience. The Veteran's service-connected bilateral hearing loss was evaluated by a VA examination for compensation purposes in June 2012. The current examiner must review this examination, as well as the balance of the record, and must provide additional information detailing the impact of the Veteran's service-connected bilateral hearing loss and tinnitus on his functioning. The Veteran's statements about the functional effects of his bilateral hearing loss and tinnitus must be considered together with the balance of relevant evidence of record. The Veteran's service-connected pilonidal sinus was addressed in an April 2013 VA examination. The findings of that examination with respect to the pilonidal sinus must be considered by the examiner, together with the balance of relevant evidence of record. A complete rationale for all opinions must be provided. If the examiner cannot provide a 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. 3. 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. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, 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 any scheduled examination, documentation must be obtained and associated with the evidence of record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the evidence of record demonstrating any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for 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).