Citation Nr: 1324204 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-15 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. At that time the Veteran was appealing a reduction in the disability rating for her service-connected muscle contraction headaches due to an undiagnosed illness. The Board restored the Veteran's previously assigned 30 percent rating by way of a decision dated in April 2010. The Board also found that the evidence of record reasonably raised the issue of entitlement to a TDIU rating and remanded that issue to the agency of original jurisdiction (AOJ) for further development. An issue of entitlement to a disability rating higher than 30 percent for service-connected muscle contraction headaches was referred to the AOJ for adjudication at the same time. The Appeals Management Center (AMC) acted as the AOJ in the case. The AMC developed additional evidence in regard to the TDIU rating and denied the claim in July 2011. A supplemental statement of the case (SSOC) was issued at the time and the case was returned to the Board for appellate review of the TDIU rating issue. The AMC took no action on the referred issue of a higher rating for muscle contraction headaches. The Board denied the Veteran's claim for entitlement to a TDIU rating in September 2011. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, the Court issued a memorandum decision on the matter. The Court determined that the Board had failed to adjudicate the issue of the Veteran's entitlement to a referral for consideration of an extraschedular disability rating. Consequently, the Court set aside the Board's September 2011 decision and remanded the case for further adjudication. The Board wrote to the Veteran in February 2013. She was advised that the case was returned to the Board by the Court. She was further advised that she had 90 days to submit additional evidence or argument in support of her claim. The Veteran's attorney submitted additional evidence and argument that was received at the Board in April 2013. The Veteran waived considered of the new evidence by the AOJ in the first instance. As noted, the issue of entitlement to a disability rating higher than 30 percent for service-connected muscle contraction headaches was previously referred by the Board to the AOJ in April 2010. No action was taken in regard to this issue based on that referral. As the Veteran's case is being remanded to the RO as the AOJ, the RO should take action on the higher rating issue in addition to conducting whatever additional development that is required for the TDIU rating issue. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As noted in the Introduction, the Board restored a 30 percent rating for the Veteran's service-connected muscle contraction headaches due to an undiagnosed illness in April 2010. The Board also determined that the evidence of record raised the issue of entitlement to a TDIU rating although the issue had not yet been adjudicated by the RO. Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If a Veteran does not meet these threshold minimum percentage standards set forth in 38 C.F.R. § 4.16(a), she still may be entitled to a TDIU on an extraschedular basis, provided she is unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. 38 C.F.R. § 4.16(b). See also 38 C.F.R. § 3.321(b)(1) and Fanning v. Brown, 4 Vet. App. 225 (1993). A review of the claims folder reflects that the Veteran's initial appeal of her reduced rating was certified to the Board by the RO on July 25, 2007. The Veteran submitted evidence in support of a TDIU claim that was received at the RO on July 31, 2007. The evidence consisted of a letter from the Office of Personnel Management (OPM) that the Veteran's application for disability retirement had been approved. The letter was dated in May 2007. The Veteran included a statement with the OPM letter wherein she said she had been retired from her federal government position due to the severity of her service-connected headache disability. It is not clear from the documents whether they were forwarded to the Board as there is no date stamp from the Board to signify their receipt. By contrast, a copy of a December 2008 favorable decision for the Veteran from the Social Security Administration (SSA) was faxed to the Board in January 2009. A second copy of the decision from SSA was forwarded to the Board, with a waiver of consideration by the AOJ, in February 2009. Although it is not clear whether the OPM letter was before the Board in 2010, the Veteran's representative submitted written argument in support of the challenge of the reduced rating for the Veteran's headache disability in March 2010. At that time, the representative cited to the OPM letter as evidence supporting the prior 30 percent rating and even a 50 percent rating for the Veteran's headaches. The AMC conducted the development ordered by the Board in the remand of April 2010. In that regard, the Veteran's records from the SSA were received and associated with the claims folder. The remand did not directly task the AOJ to obtain the Veteran's records from OPM. Thus, the AMC took no action to obtain those records despite the requirements of 38 C.F.R. § 3.159(c)(2) (2012). The Veteran was afforded several VA examinations to assess her disability status in August 2010. The same examiner conducted examinations of a general medical nature, the Veteran's headaches and possible residuals from a service-connected ganglion cyst. The examiner noted that the Veteran was in receipt of SSA disability benefits but incorrectly stated the decision date as December 2009 instead of 2008. In short, the VA examiner opined that the Veteran's service-connected headache disability and ganglion cyst of the right wrist disability did not prevent the Veteran from obtaining and maintaining substantially gainful employment. The examiner did not address the Veteran's OPM disability. The AMC issued a SSOC in July 2011. The SSOC addressed evidence that was not, and is not, of record as well as failed to address evidence submitted by the Veteran. As to the evidence not of record, the SSOC referenced VA treatment records for the period from September 2009 to June 2011. These records are not included in the claims folder and are not shown in Virtual VA. As to records not included, the Veteran submitted records from the Mayo Clinic in Florida that covered a period of treatment from December 2008 to February 2010. The records were printed in August 2010. The records were cited by the VA examiner in her reports of August 2010 with specific citations to dates when the Veteran was evaluated and prescribed certain medications. However, the evidence was not listed in the SSOC with the other evidence considered in this case. In addition, there was no mention of the Veteran's OPM disability retirement. Thus, the outstanding VA treatment records must be obtained and either associated with the claims folder or made available in Virtual VA. The records related to the Veteran's OPM disability retirement must also be obtained. As noted in the Introduction, the Veteran submitted additional evidence in support of her claim that was received at the Board in April 2013. The Veteran included a waiver of consideration of the evidence by the AOJ. However, as the prior adjudication of the Veteran's entitlement to a TDIU rating did not include consideration of referral for an extraschedular rating at the AOJ level, the Board will not review the evidence in that light in the first instance. On remand, the RO must refer the case to the Director of Compensation under 38 C.F.R. § 3.321, and 4.16(b). In light of the missing evidence and that the Veteran was last examined for this issue in August 2010, a new examination is required to assess her status. The examiner should have the opportunity to consider the additional evidence as well as to provide a current assessment of the Veteran's disability. Finally, the Board is cognizant of the instructions provided in Fast Letter 13-13 in regard to claims for a TDIU rating. The RO is advised that, in April 2013, the Veteran submitted a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a completed VA Form 21-4192, Request for Employment Information in Connection With a Claim for Disability Benefits for her last employer. This was the federal employment where the Veteran was retired by reason of disability in May 2007. In her 21-8940 the Veteran listed her service-connected headaches disability as the reason for her inability to work. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that she identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to her claim. The RO should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record. The RO should review the Virtual VA medical records to ensure that the records cited to in the SSOC of July 2011 are either included in Virtual VA or the claims folder. 2. The RO should conduct additional development as necessary to obtain the records related to the Veteran's OPM disability retirement. 3. Only upon completion of the above development, the Veteran should be afforded a VA examination to determine the current status of her service-connected headache disability. She listed this as the condition affecting her ability to maintain her employment on her VA Form 21-8940. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. All results of any such studies, tests, or evaluations must be included in the examination report. The examiner is advised that the Veteran has been placed on disability retirement from her federal government employment, notice was received in May 2007, although the specific reason(s) is not known at the time of the remand. The Veteran is also in receipt of SSA disability benefits due, in part, to her service-connected headache disability. The examiner is further advised that the Veteran submitted a report from a vocational consultant in April 2013. The consultant opined that the Veteran was unable to obtain and maintain substantially gainful employment due to her headaches. The examiner should evaluate the Veteran's service-connected headache disability and provide an opinion as to whether the Veteran's service-connected disability alone renders her unable to obtain and maintain substantially gainful employment currently, or at any time since 2004. The examiner should provide a complete rationale for any opinion expressed. 4. The RO must ensure that the medical examination report and opinion complies with this remand and the questions presented in the request. If the report and/or opinion are insufficient, they must be returned to the examiner for necessary corrective action, as appropriate. 5. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issue on appeal. If the claim is not granted, the RO should refer the case for consideration of an extraschedular rating. The referral should request extra-schedular evaluation of two matters. First, whether an extra-schedular rating is warranted for the service-connected headache disorder under 38 C.F.R. 3.321. Second, whether the Veteran is entitled to an extra-schedular TDIU rating under 38 C.F.R. 4.16(b). If the benefit sought is not granted, the Veteran and her attorney should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. The SSOC must include a discussion for any decision to not refer the Veteran's case for an extraschedular rating. The SSOC must also discuss the Mayo Clinic in Florida treatment records. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until she is notified by the AOJ. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). _________________________________________________ MICHAEL MARTIN 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).