Citation Nr: 1322668 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-29 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran apparently had a period of active duty or active duty for training (ACDUTRA) in the Army Reserves from October 1987 to March 1988 and had active service from January 1991 to June 1991 and from July 1991 to December 1991; the Veteran also apparently had unverified periods of Reserve component active duty for training and inactive duty training. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for TDIU. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in May 2013. A transcript of the proceeding is of record. 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 Veteran seeks entitlement to a TDIU. He claims to have last worked on a full-time basis in March 2008, although he indicated that he was also employed briefly on a full-time basis in late 2012 and/or early 2013. He is a licensed practical nurse. In October 2008, the Veteran's private physician at Antelope Creek Family Physicians submitted a note indicating that the Veteran had a permanent lifting restriction of greater than 40 pounds due to his neck injury, and that he was unable to work his current occupation as a nurse in a hospital because of this. However, in an October 2008 treatment note, a physician's assistant explained that the Veteran had initially requested a note indicating that he was unable to work as a nurse in general, and that the physician narrowed it to inability work as a nurse in a hospital because it was felt that he could work as a nurse in a school or clinical setting which would not require heavy lifting. In addition, the evidence of record suggests that a nonservice-connected right knee injury also contributed to the Veteran's alleged inability to work. Private treatment records from Nebraska Orthopaedic and Sports Medicine, P.C., dated in 2008 revealed that the Veteran incurred two right knee injuries while on the job which prevented full-time standing. The Veteran was most recently afforded a VA general examination addressing the combined effects of all his service-connected disabilities in November 2008, at which time he was service connected for the following disabilities: chronic sinusitis and headaches status post septoplasty and turbinate cautery, evaluated as 50 percent disabling; herniated nucleus pulposus at C6-7 with narrowing of C3-4 and C4-5, evaluated as 20 percent disabling; chronic bronchitis with recurrent episodes of bronchospasm, evaluated as 10 percent disabling; and left upper extremity radiculopathy, evaluated as 10 percent disabling. His combined evaluation for compensation at that time was 70 percent. The November 2008 VA examiner noted that the Veteran had not worked since 2008 due to neck and lung disabilities. The examiner opined that the Veteran's cervical disc herniation prevented sports and exercise and had severe effects on chores, shopping, recreation, traveling, bathing, dressing, toileting, grooming, and driving. The examiner opined that the Veteran's chronic bronchitis also prevented exercise and had a severe effect on chores, shopping, sports, recreation, traveling, bathing, dressing, toileting, grooming, and driving. In a March 2009 addendum, the examiner opined that the Veteran was unemployable at the present time on the basis of his diagnoses and limitation on daily and occupational activity. The examiner explained that the Veteran's cervical spine disability resulted in problems lifting and carrying, difficulty in reaching, lack of stamina, weakness and fatigue, decreased strength of the left upper extremity, and pain and impaired manual dexterity in the left hand. He explained that the Veteran's sinusitis and bronchial asthma resulted in decreased concentration, difficulty following instructions, lack of stamina, weakness and fatigue, pain, and dyspnea of exertion. Although the Veteran was afforded a VA examination in February 2011, this was limited to the evaluation of his service-connected cervical spine disability. At that time, the examiner diagnosed the Veteran as having prior C6-C7 fusion procedure and neural foraminal narrowing at C6-C7. At that time, the Veteran was indicated to be working full-time as a medical assistant; however, the examiner failed to enter any data with respect to effects of the disability, if any, on the Veteran's occupational activities. The examiner did indicate that there were effects of the disability on the Veteran's usual daily activities, in that he complained of left arm cramping and hand fasciculations upon repetitive use during work and daily activities. In a May 2011 VA examination, it was noted that the Veteran's cervical spine disability had progressed, and that he was now diagnosed as having herniated nucleus pulposus at C6-C7 with narrowing of C3-C4 and C4-C5 status post fusion; intervertebral disc syndrome of the cervical spine; and status post discectomy and status post fusion with allograft and plating with residual scars. The Veteran is currently service connected for the following disabilities: chronic sinusitis and headaches status post septoplasty and turbinate cautery, evaluated as 50 percent disabling; herniated nucleus pulposus at C6-7 with narrowing of C3-4 and C4-5 status post fusion, evaluated as 20 percent disabling; left upper extremity radiculopathy, evaluated as 20 percent disabling; chronic bronchitis with recurrent episodes of bronchospasm, evaluated as 10 percent disabling; chronic right upper extremity C6 radiculopathy, evaluated as 10 percent disabling; and scars of the left posterior and right anterior neck region, evaluated as noncompensable. His current combined evaluation for compensation is 80 percent. The Board emphasizes that, since his most recent VA general medical examination in November 2008, the Veteran has been granted entitlement to service connection for chronic right upper extremity radiculopathy and scars of the left posterior and right anterior neck region, and his disability evaluation for service-connected left upper extremity radiculopathy has been increased from 10 percent to 20 percent. In addition, at his May 2013 Board videoconference hearing, the Veteran suggested that his cervical spine disability was worsening, as physicians had informed him that his cervical spine discs were further degenerating. Due to the vague and sometimes contradictory nature of the evidence of record, as well as the fact that the Veteran's overall disability picture has worsened (as evidenced by the addition of new service-connected disabilities as well as an increase in the disability evaluation for his service-connected left upper extremity radiculopathy) since the most recent VA general medical examination to consider the aggregate effect of all his service-connected disabilities in November 2008, the Board finds that an additional VA examination must be conducted to determine whether all his service-connected disabilities, considered in combination, render him unemployable. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the type, full-time or part-time status, and income from any current employment. 2. Schedule the Veteran for a VA general medical examination to determine whether all service-connected disabilities, considered in combination, render the Veteran unemployable. The clinician is requested to furnish an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service-connected disabilities alone, considered in combination, render him unemployable. Following the examination and a review of the service and post-service medical records, the VA examiner must state whether the Veteran is unable to obtain or retain employment due solely to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities, to include the approximate date of onset of such unemployability. The examiner is requested to provide a complete rationale for his or her opinions, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The examiner should review the claims file, to include this remand, and this fact should be noted in the accompanying medical report. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2012). 3. Following completion of the above, readjudicate the issue of entitlement to a TDIU, with consideration of all evidence of record, to include additional evidence received since issuance of the most recent supplemental statement of the case in October 2012. If the benefit sought is not granted, issue another supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ U. R. POWELL 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).