Citation Nr: 1325466 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-11 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1955 to March 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision from the RO which denied entitlement to a TDIU. The Veteran filed a notice of disagreement (NOD) on March 2007. A statement of the case (SOC) was issued on March 2008, and the Veteran perfected his appeal with the timely submission of a VA Form 9. This appeal was previously before the Board in June 2012. A decision was issued denying the Veteran's claim. That decision was appealed to the Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand was issued in January 2013, which vacated the June 2012 Board decision and remanded in order for the provision of an adequate statement of reasons and bases for its determination. This claim is once again before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to obtain a new VA examination. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Initially, the Board notes that the Veteran is currently service connected for stricture of the esophagus associated with prepyloric gastritis with duodenal diverticulum which has been rated as 30 percent disabling and prepyloric gastritis with duodenal diverticulum which has been rated as 30 percent disabling. The Veteran's combined evaluation is 50 percent. Thus, the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) have not been met. Nonetheless, in exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned, on an extraschedular basis, upon a showing that the individual is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board acknowledges that the Veteran has been unemployed during the time pertinent to this appeal. However, unemployed does not mean unemployable. On the Veteran's VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) the Veteran reported that he has not worked since 2003 due to his service-connected disabilities. A February 2006 VA unemployability and esophagus and hiatal hernia examination report shows that the Veteran reported last working in 2000. He stated that he was unable to continue working due to heartburn symptoms as well as pain in the chest. Upon examination, the examiner stated that the Veteran appeared to be healthy in his physical appearance. The examiner found no reason to think that the Veteran was unemployable. He noted that mentally, the Veteran appeared to be able to understand what was going on and physically he found nothing markedly abnormal about the Veteran. The examiner did not offer any detailed discussion of the Veteran's educational background, work history, or vocational training. A September 2011 VA esophagus and hiatal hernia examination report shows that the Veteran stated that he was currently not working. He reported being retired by reason of eligibility of age or duration of work. The examiner found that the Veteran's esophageal reflux and associated gastric reflux caused significant effects to the Veteran's employment. He noted specific impacts of decreased mobility, lack of stamina, weakness or fatigue, and pain. There was no discussion as to whether these significant effects caused the Veteran to be unemployable and there was no discussion of whether these effects were more pronounced in manual versus sedentary labor. The examiner did not offer any detailed discussion of the Veteran's educational background, work history, or vocational training. Remand may be required where the record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). The Board finds that the February 2006 and September 2011 VA examinations are inadequate to assess the issue of the Veteran's employability. Although both examinations took the claims file, subjective histories, and objective testing into account, they failed to adequately address whether the Veteran's disabilities in and of themselves prevent the Veteran from being able to secure or follow a substantially gainful occupation in light of the Veteran's educational background, work history, and vocational training. In particular, the February 2006 VA examination did not fully discuss the fact that, although the Veteran appeared healthy and employable at the time of the examination, the Veteran claims that he had to stop working in 2000 due to heartburn symptoms as well as pain in the chest. Additionally, the September 2011 VA examination merely stated that the Veteran's conditions would have significant effects, but did not explain whether that impact actually prevented substantially gainful employment. Neither examination engaged in a discussion of the Veteran's educational background, work history, or vocational training or whether manual versus sedentary labor would be more affected. Accordingly, the Board finds that a new VA examination to assess the Veteran's service-connected conditions as they relate to his employability is necessary due to the inadequacy of the two prior examinations. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records not already on file should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all outstanding VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should also be afforded an examination to determine whether the Veteran, based on his work history, level of education, and service-connected disabilities, but not his age or any nonservice-connected disability, is unable to secure or follow a substantially gainful occupation. The examiner should obtain a complete work history from the Veteran, including the specific duties that were required in each position. The examiner should also obtain a history of the Veteran's educational level and vocational training. The examiner should discuss all impairment and/or symptoms caused by the Veteran's service-connected conditions and state whether those disabilities and associated impairment, renders him unable to secure or follow a substantially gainful occupation. This should be discussed in terms of both sedentary and manual type of employment. The examiner should specifically address what type of duties the Veteran would be capable of performing in light of his service-connected disabilities and what duties he would not be able to perform due to his service-connected disabilities. The examiner should comment on the duties associated with his past positions and comment on whether he would be able to perform those duties or similar duties taking into consideration his service-connected disabilities. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished. An explanation for all opinions expressed must be provided. The rationale for the opinion should include a discussion of the impact of the Veteran's service-connected disabilities, his past work history/duties and his educational background. The examiner should not take into consideration the Veteran's age or whether it may be difficult for the Veteran to find employment. Rather, the opinion should focus on whether the Veteran's service-connected disability prevents him from performing the physical and mental acts required for a substantially gainful occupation. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ DEBORAH W. SINGLETON 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).