Citation Nr: 1322745 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-22 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a permanent total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from October 1979 to February 1980, from October 1986 to February 1987, and in June 2003. She appealed to the Board of Veterans' Appeals (Board/BVA) is from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that declined to conclude she had permanent status regarding her disabilities and consequent TDIU entitlement, although she has had a TDIU effectively since April 2, 2007. In March 2011, in support of her claim that her TDIU should be made permanent, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. Her claim requires further development before being decided on appeal, however, so the Board is remanding her claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Remand is necessary to ensure there is a complete record upon which to fairly decide this claim. In particular, a VA compensation examination is needed reassessing the severity of the Veteran's service-connected disabilities, which in turn will allow VA adjudicators to better address whether she is entitled to a permanent TDIU. She has a 70 percent rating for adjustment disorder with depressed mood, a 50 percent rating for headaches consistent with occipital neuralgia, and a 10 percent rating for thoracic outlet syndrome of her right upper extremity. The combined rating for these disabilities is 90 percent. See 38 C.F.R. § 4.25 (VA's Combined Ratings Table). And, as already alluded to, she additionally has had a TDIU effectively since April 2, 2007, on the premise that her service-connected disabilities preclude her from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19 (2012). She contends that she is not only totally disabled, but also permanently disabled and unemployable because of these service-connected disabilities. Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. A disability is permanent if the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Id. Unlike the test for individual unemployability, age is an allowable and appropriate consideration in making this determination. 38 C.F.R. § 3.340(b). Other factors to consider include failure to pursue treatment and whether the disability has been shown to be of longstanding duration, actually totally incapacitating, or of such a nature as to render the probability of permanent improvement remote. See KL v. Brown, 5 Vet. App. 205, 208 (1993). Once permanence is established, a Veteran need not undergo further VA examinations to retain her 100 percent disability rating for the permanent disability. See 38 C.F.R. § 3.327(b)(2)(iii). In denying this claim in the February 2009 rating decision at issue, the RO concluded there was a likelihood of improvement in the Veteran's service-connected disabilities. In response she filed a timely notice of disagreement (NOD) in July 2009, and the RO subsequently had her undergo VA examinations in April 2010 to determine the then current severity and permanence of her service-connected disabilities. The examiners addressed the severity, but not permanence, of her disabilities. The examination findings on the whole therefore are incomplete and resultantly insufficient to allow the Board to assess the permanence of these service-connected disabilities. It therefore is incumbent on the Board to obtain the necessary clarifying information to make this important determination. 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that, once VA undertakes the effort to provide an examination concerning a claim, even if not statutorily obligated to, it must provide an adequate one, else, notify the Veteran why one cannot or will not be provided). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Ask the Veteran whether she has received any further evaluation or treatment for her service-connected disabilities, either from VA or elsewhere (privately, etc.). If she has, attempt to obtain these additional records. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and her notified in accordance with 38 C.F.R. § 3.159(c) and (e). In particular, obtain her complete treatment records from the VA Medical Center (VAMC) in North Little Rock, Arkansas, dated since 2010, including the report of the February 2013 VA examination referenced in the RO's February 2013 rating decision. Put these additional records in the claims file, either the physical claims file or electronic ("Virtual VA") file. 2. Then schedule another VA compensation examination to reassess the severity of her service-connected disabilities, including specifically in terms of the applicable rating criteria. To this end, the examiner must state whether the impairment caused by the service-connected disabilities is reasonably certain to continue throughout the Veteran's lifetime. The examiner is advised that the Veteran's age may be considered when determining this issue of permanence. The Veteran is hereby advised that failure to report for this additional VA examination, without good cause, will have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical and other history. 3. Next readjudicate the claim in light of this and all additional evidence. If a permanent TDIU is not granted, send the Veteran and her representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).