Citation Nr: 1324486 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 98-03 604A ) 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). (The issues of entitlement to an initial compensable rating for headaches and entitlement to an effective date earlier than December 24, 2003 for the grant of service connection of headaches will be addressed in a separate decision.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) from a July 1997 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that increased the disability ratings for right shoulder and left shoulder disabilities, from 10 percent to 20 percent, effective November 5, 1996. The Veteran testified before the Board in January 2001 and April 2008. In a June 2003 decision, the Board denied increased ratings for right shoulder and left shoulder disabilities. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Remand, a September 2004 Order of the Court remanded the claims for readjudication in accordance with the Joint Motion for Remand. The Board remanded the claims in March 2005 in compliance with the September 2004 Order. The Board also remanded the claims for further development in March 2001, May 2007, December 2007, and August 2008. In a January 2011 decision, the Board again denied increased ratings for right shoulder and left shoulder disabilities. Additionally, the Board determined that the issue of entitlement to a TDIU rating had been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a TDIU claim is part of an increased rating claim when such claim is raised by the record). The Board remanded the claim for a TDIU in January 2011 for further development. The Board notes that the prior January 2011 Board decision that denied increased ratings for right shoulder and left shoulder disabilities and remanded the claim for a TDIU was a panel decision consisting of 3 Veterans Law Judges (VLJs) because the Veteran had had a personal hearing before two separate VLJs during the course of his appeal. However, one of the VLJs whom the Veteran had testified before at a hearing has retired subsequent to the January 2011 Board decision. Therefore, as the reason for a panel decision has abated, single-judge disposition of the Veteran's current claim on appeal is now appropriate, and the Board will proceed to adjudicate the claim as such. In June 2013, the Veteran submitted additional evidence in the form of VA and private medical reports dated from October 1974 to July 2012. He waived initial RO consideration of the newly submitted evidence. See 38 C.F.R. § 20.1304 (2012). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that certain documents, including VA medical records dated from August 2010 to March 2012, are potentially relevant to the issue on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. Any future consideration of this appellant's case should also take into consideration the existence of this electronic 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for TDIU. In a separate decision, the Board has remanded the Veteran's claim for an initial compensable rating for headaches in order to obtain another VA examination to determine the current severity of his disability. Thus, the Board finds that the Veteran's claim for a TDIU is inextricably intertwined with the claim for an initial compensable rating for headaches. The assigning of a higher initial disability rating for the Veteran's headaches would potentially affect the issue of whether the Veteran was unemployable due to his service-connected disabilities. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180. Additionally, the Veteran's claim for a TDIU was remanded in January 2011 in order to obtain an examination to ascertain the impact of his service-connected disabilities on his unemployability. The Board specifically directed the RO/AMC to consider whether all of the Veteran's service-connected disabilities (right shoulder disability, left shoulder disability, bilateral hearing loss, tinnitus, headaches), taken together, without consideration of his non-service-connected disabilities, would render him unable to secure or follow a substantially gainful occupation. On VA examination in May 2011 and VA addendum in March 2012, the examiner only determined that the Veteran was capable of sedentary to light duty based on his bilateral shoulder disability and headaches. The lack of opinion regarding whether all of the Veteran's service-connected disabilities, taken together, would prevent him from obtaining or securing employment renders the May 2011 VA examination and March 2012 VA addendum inadequate because of the failure to provide the findings requested in the previous Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, in order to fairly assess his claim, the Board finds that following the outcome of the claim for an initial compensable rating for headaches, the Veteran should also be provided another VA examination regarding his employability. Accordingly, the case is REMANDED for the following action: 1. Enact the Board's separate decision remanding the claim for an initial compensable rating for headaches. Following the completion of the remand directives, readjudicate the claim for an initial compensable rating for headaches, and if warranted, assign a new disability rating for the headache disability. 2. Following the completion of the actions in the Board's separate decision regarding the claim for an initial compensable rating for headaches, schedule the Veteran for an examination to ascertain the impact of his service-connected disabilities on his unemployability. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities on his employability. The examiner should opine as to whether it is as likely as not (50 percent or more probability) that the Veteran's service-connected disabilities (right shoulder disability, left shoulder disability, bilateral hearing loss, tinnitus, headaches) without consideration of his non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The rationale for any opinion should be provided. 3. Then, readjudicate the claim, taking such additional development action as is deemed proper, including consideration of submission of the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for extra-schedular consideration, if appropriate. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).