Citation Nr: 1323650 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 05-17 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to December 1973. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This case was previously before the Board in September 2007 and March 2010, on which occasions it was remanded for additional development. Subsequent to the March 2010 remand, the Board, in a decision of January 2012, denied entitlement to a total disability rating based upon individual unemployability. That decision was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court) which, in a July 2012 Order, vacated the Board's January 2012 decision denying entitlement to a total disability rating based upon individual unemployability, and, in so doing, remanded the Veteran's case to the Board for action consistent with a July 2012 Amended Joint Motion for Vacatur and Remand. In January 2013, the Veteran's case was once again REMANDED to the RO for additional development. The case is now, once more, before the Board for appellate review. For reasons which will become apparent, the Veteran's appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND The Veteran in this case seeks entitlement to a total disability rating based upon individual unemployability. In that regard, service connection is currently in effect for lumbosacral strain associated with the postoperative residuals of right total knee arthroplasty, evaluated as 40 percent disabling; the postoperative residuals of right total knee arthroplasty associated with the residuals of a medial meniscectomy of the right knee, evaluated as 30 percent disabling; and the postoperative residuals of olecranon bursitis of the right elbow, evaluated as 10 percent disabling. As previously conceded, the Veteran currently meets the schedular criteria for the award of a total disability rating based upon individual unemployability. What remains to be determined is whether the Veteran's service-connected disabilities, in and of themselves, are sufficient to preclude his participation in substantially gainful employment. In that regard, at the time of the Board's most recent remand in January 2013, it was requested that the Veteran be afforded a VA Social and Industrial Survey in order to assist in evaluating the degree of his current social and industrial impairment. However, as noted by the Veteran's accredited representative, no such social and industrial survey was ever, in fact, conducted. Moreover, during the course of that same remand, it was requested that the Veteran be scheduled for an additional VA compensation examination to be conducted by "an orthopedic medical professional" in order to reassess the severity of his service-connected orthopedic disabilities. However, as once again noted by the Veteran's accredited representative, the examinations in question were conducted by a family nurse practitioner and a physician's assistant, and not, as requested by the Board, by "an orthopedic medical professional." Significantly, a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Moreover, a remand by the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand, either personally, or as head of the Department. See Stegall v. West, 18 Vet. App. 268, 271 (1998). Under the circumstances, an additional attempt will be made to obtain the aforementioned Social and Industrial Survey and VA orthopedic examination. Accordingly, the case is once again REMANDED to the RO/AMC for the following actions: 1. The Veteran should be scheduled for a VA Social and Industrial Survey in order to assist VA in evaluating his current level of social and industrial impairment. As part of that survey, a complete employment history should be obtained, inclusive of the last date of full-time and/or part-time employment. In addition, an assessment of the Veteran's day-to-day functioning should be made. The evaluating social worker should make appropriate inquiries to indicated persons or establishments, including family members, neighbors, and current and former places of employment, as necessary. In addition, the evaluating social worker should comment on the degree of social and industrial impairment experienced by the Veteran due solely to his service-connected disabilities. All such information, once obtained, should be made a part of the Veteran's claims folder. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2013, the date of the most recent VA examination of record, should then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 3. The Veteran should then be afforded an additional VA orthopedic examination in order to more accurately determine the current severity of his service-connected lumbosacral strain, postoperative residuals of right total knee arthroplasty, and postoperative residuals of olecranon bursitis of the right elbow, as well as the impact of those disabilities on his ability to engage in substantially gainful employment. The examination should be conducted by an orthopedist who has not heretofore seen or examined the Veteran. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claims. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the orthopedic examination, the evaluating orthopedist should offer an opinion as to whether the Veteran's service-connected lumbosacral strain, postoperative residuals of right total knee arthroplasty, and postoperative residuals of olecranon bursitis of the right elbow, when taken in conjunction with his education and occupational experience, and disregarding his age and other nonservice connected disabilities, are sufficient to preclude his obtaining and retaining substantially gainful (including sedentary) employment. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 4. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directors of this REMAND, that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 5. The RO/AMC should then readjudicate the Veteran's claim for a total disability rating based upon individual unemployability. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in April 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ MICHAEL D. LYON 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).