Citation Nr: 1324857 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-18 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on unemployability due to service connected disability(TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from June 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge, via videoconference. A transcript of the hearing is associated with the claims file. In January 2009 the Board remanded this claim for additional development. In August 2010, the Board reopened the claim for service connection for a lumbar disorder and remanded the issue as well as the issue regarding a TDIU for further development. In November 2012, the claim was again remanded. In May 2013, the Board granted service connection for a lumbar spine disorder remanded the TDIU claim. The case has been returned to the Board and is ready for further review. 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 Reason for remand: to obtain an adequate addendum opinion In the Board's May 2013 remand, the Board noted that service connection had been granted for a lumbar spine disability by the Board and the RO was to obtain an opinion as to the overall or combined effect of the Veteran's service-connected disabilities on his ability to work. One opinion was to be provided as to the combined effect of all of the Veteran's service-connected disabilities on his occupational functioning, and specifically whether they are sufficiently severe as to prevent him from engaging in substantially gainful employment without regard to age or non-service connected disabilities. The examiner was to provide a rationale for his/her opinion. In May 2013, the RO implemented the Board's decision and assigned a 10 percent evaluation for a back disorder and a 10 percent evaluation for thoracolumbar radiculopathy, left. In June 2013, a VA physician offered an opinion. He discussed the bilateral ankle disorders and the lumbar spine disorder. The examiner did not discuss the service-connected radiculopathy. As to the back disorder, the clinician stated that the Veteran would be limited in occupations that require heavy or unassisted lifting, repetitive rotation of the back, carrying, pushing or pulling heavy objects, vibrational stresses, overhead work, and prolonged sitting. The examiner went on to discuss an injury the Veteran sustained in 1982, after service and stated that most of his limitations on his occupational functioning are related to that back injury. The examiner reported that the Veteran was employed after leaving service, so his service connected back problems were not limiting his employment. The examiner went on to state that there is no evidence in the service records of a back condition and nothing in the file after discharge until 1982 that the Veteran was having any type of spine symptoms. The Board finds that the rationale for the opinion offered is not responsive to the issue at hand. The etiology of the back disorder is not in question. What must be determined is if the now service connected back disorder as well as the now service-connected radiculopathy in combination with all other service-connected disorders are sufficiently severe as to prevent him from engaging in substantially gainful employment without regard to age or non-service connected disabilities. Further the specific reasons for the finding must be provided. When VA undertakes to obtain a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Refer the file to the June 2013 VA examiner for an addendum opinion. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. If the previous examiner is not available, refer the file to another VA physician for the requested information. The examiner must offer an opinion as to whether the Veteran's service-connected disabilities ( left ankle sprain, right ankle sprain, ruptured disk removal of the lumbar spine and thoracolumbar radiculopathy, left) render him unemployable without regard to his age or non service connected disabilities. Complete rationale must be provided. All opinions provided must include an explanation of the bases for the opinion. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 2. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2012); See also Stegall v. West, 11 Vet. App. 268 (1998). 3. Following completion of the above, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).