Citation Nr: 1322071 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 05-38 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to April 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2011, the Board reopened and remanded the Veteran's back disability claim. The VA Appeals Management Center (AMC) continued the previous denial of the claim in a November 2012 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. In January 2009 and October 2011 decisions, the Board referred the issues of entitlement to service connection for high blood pressure, high cholesterol, and diabetes. To date, however, it appears that no action has been taken on these issues. Therefore, these issues are again referred for any appropriate action. 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 The Board previously remanded the service connection issue in October 2011 for an examination and to have the Veteran identify worker's compensation records pertaining to a March 2006 back injury. On remand, the Veteran did not respond to the RO's request for that information. However, it is noted that the Veteran's Virtual VA record includes a November 2009 letter from the U.S. Department of Labor concerning a back injury in 1991. On remand, VA should attempt to obtain records from the U.S. Department of Labor concerning the Veteran's worker's compensation claim. On remand, the Veteran was afforded a VA examination in December 2011. In addition to the results of a current examination, the VA examiner considered the Veteran's in-service injuries from performing his duties as a laundry specialist as well as his history of lumbar spine surgeries. In an addendum dated October 2012, a VA examiner who reviewed the Veteran's claims folder, to include the December 2011 VA examination report, concluded that it is less likely than not (less than 50 percent probability) that the Veteran's current back disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale for his conclusion was based on his finding that the Veteran's current back disability is a multi-factorial etiology that could be due to repetitive motions, normal activities of daily living, sports, or other activities. He specifically opined that the current back disability is not necessarily secondary to any specific activities performed while in service. However, the opinion does not address whether a current back disability is at least as likely as not related to service, including repetitive motions, normal activities of daily living, sports, or other activities therein. In a statement dated in September 2012, the Veteran reported both that he injured his back during basic training and that he had to lift huge machines, set up large tents, and collect large bags of clothes during service. Accordingly, the examination report is insufficient and another examination should be conducted. In addition, it is noted that Dr. Howser authored a statement dated in December 1993 indicting that the Veteran was first seen in his office on June 12, 1991. The physician also noted that the Veteran had surgery by Dr. Lindermuth in 1990 and then also by one of his partners some time during that time. The Veteran had also seen Dr. Canale in reference to a posterior column stimulator. Medical records have not been submitted from these providers. Accordingly, the Veteran should be asked to provide or authorize the release of records from these medical providers. In the December 2011 decision, the Board noted in the Introduction that the Veteran stated in April 2009 that he had not worked since 1989 and attributed his inability to work, in pertinent part, to harassment by coworkers due to his service-connected acne keloidalis with keloid formation and his emotional distress. The Board thereafter referred the issue of TDIU because the issue was reasonably raised by the evidence of record. In the December 2011 decision, the Board also adjudicated the Veteran's claims of entitlement to increased disability ratings for acne keloidalis with keloid formation as well as tender keloid nodule on the chest. Specifically, the Board denied entitlement to an in excess of 30 percent for the acne keloidalis with keloid formation and granted a 10 percent evaluation for the tender keloid nodule on the chest. The October 2011 Board decision was subsequently appealed to the United States Court of Appeals for Veterans Claims (the Court), and counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand. An Order of the Court dated December 13, 2012, granted the motion, and vacated only the part of the October 2011 Board decision that referred, rather than remanded, the issue of entitlement to TDIU, and remanded the case to the Board. The Joint Motion for Remand noted that pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), when a claimant raises unemployability based upon a condition for which he is seeking an increased rating, the TDIU is "part and parcel of the determination of the ... rating for that disability." Rice at 454-455. Moreover, in Young v. Shinseki, 25 Vet. App. 201 (2012), the Court reiterated that "referral of a matter is appropriate only when the Board lacks jurisdiction over the matter being referred; remand is the appropriate action when the Board has jurisdiction over the matter, but further development is needed." Young at 203. Therefore, because the issue of TDIU was part and parcel of the Veteran's claim for an increased rating for his service-connected keloid condition, the Board should have remanded, rather than referred, the issue of whether the Veteran was entitled to TDIU by virtue of his service-connected keloid condition. As indicated above, the Veteran has reported that his service-connected disabilities render him unemployable. In light of the foregoing, the matter should be remanded to the RO for adjudication of whether referral of the Veteran's claim for consideration of TDIU on an extraschedular basis is warranted, in accordance with the holding in Rice and the December 2012 Joint Motion for Remand. The Veteran should be provided with notice as to how to substantiate his claim for an increased rating based on TDIU and an examination to assess whether his service-connected disabilities render him unemployable. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he provide or authorize the release of medical records from Dr. Lindermuth and his partners, Dr. Howser, and Dr. Canale. The Veteran should also be asked to provide or identify any additional medical records pertaining to his back, that are not already of record, since his discharge from service. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Attempt to obtain, from the U.S. Department of Labor, records pertaining to worker's compensation claim(s) pertaining to back injury to include medical records that were considered with respect to the claim(s). All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that the VA made to obtain those records; (c) describe any further action to be taken by the VA with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Issue a VCAA notice letter which satisfies all VCAA notice obligations with regard to the issue of entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and any other applicable legal precedent. 4. After the above development is completed, schedule the Veteran for a VA examination to determine the nature and etiology of the currently diagnosed back disability and its relationship to service, if any. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary should be conducted at this time, and included in the examination report. In particular, the examiner is asked to express an opinion as to whether the currently diagnosed back disability at least as likely as not (i.e., 50 percent or greater possibility) began in or was related to active service, including but not limited to performance of the Veteran's in-service duties (lifting laundry bags, setting up tents, moving machinery, frequent backpacking, etc). The Veteran's performance of these duties is presumed. The examiner should provide the Veteran with an opportunity to state what symptoms he experiences and for how long they have been present, and consider the Veteran's report of continuity of symptoms since discharge from service in reaching this conclusion. The examiner must provide a complete rationale for any stated opinion. It is noted that an October 2012 VA opinion found that it is less likely than not (less than 50 percent probability) that the Veteran's current back disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale for his conclusion was based on his finding that the Veteran's current back disability is a multi-factorial etiology that could be due to repetitive motions, normal activities of daily living, sports, or other activities. He specifically opined that the current back disability is not necessarily secondary to any specific activities performed while in service. However, the opinion does not address whether a current back disability is at least as likely as not related to service, including repetitive motions, normal activities of daily living, sports, or other activities therein. Accordingly, the Board has found the opinion insufficient. 5. The Veteran should be scheduled for an appropriate VA examination to determine whether his service-connected disabilities prevent him from securing and following substantially gainful occupation. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. An opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran is unable to obtain and/or maintain substantially gainful employment as a result of his service-connected acne keloidalis with keloid formation; anxiety disorder; and tender keloid nodule on the chest should be provided. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 6. After the requested examinations have been completed, they should be reviewed and returned to the examiners if they are insufficient. Thereafter, ensure that the other development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 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). _________________________________________________ S. S. Toth 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).