Citation Nr: 1325519 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 03-10 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to November 1970 and from December 1970 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND Previously, the Board determined that the above-captioned claim was on appeal from a May 2002 rating decision. However, the Board now observes that the Veteran originally filed a claim of entitlement to a total disability rating based on individual unemployability (TDIU) in October 2000. This claim was denied in a February 2001 rating decision. Within the appellate period thereafter, the Veteran submitted a July 2001 statement wherein he asserted that he was not employable due to his service-connected disabilities. The Board finds that the July 2001 statement (previously accepted as a new claim of entitlement to TDIU) can be reasonably construed as a notice of disagreement with the February 2001 rating decision. 38 U.S.C.A. § 7104(d)(1) (West 2002); 38 C.F.R. § 3.156(b), 20.201, 20.304 (2012); Bond v. Shinseki, 659 F.3d 1362, 1366-69 (2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010); Young v. Shinseki, 22 Vet. App. 461, 467-68 (2009). The RO did not then issue a statement of the case. In October 2004, the Board determined that it had jurisdiction over the Veteran's claim of entitlement to TDIU and that a remand was required in order to afford him a statement of the case. See Manlicon v. West, 12 Vet. App. 238 (1999). In October 2005, the RO readjudicated the Veteran's TDIU claim, continuing and confirming the denial thereof. The RO then issued the Veteran an October 2005 statement of the case. In December 2005, the Veteran submitted a substantive appeal (Form 9). In March 2006, the RO internally determined that the Veteran's substantive appeal was not timely filed. Consequently, the RO determined that the Veteran did not perfect an appeal of the denial of his TDIU claim. In June 2006, the Board observed that the Veteran was not provided notice of the RO's determination that the December 2005 substantive appeal was not timely. The Board further observed that the RO had not provided the Veteran notice of his appellate rights to contest the RO's timeliness determination. As such, the Board directed the RO to undertake corrective actions. In January 2010, the Board found that the RO had not undertaken corrective actions to notify the Veteran of the adverse timeliness decision or of his appellate rights to contest that decision. As such, the Board again referred this matter to the RO for the appropriate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2011, the RO reviewed the Veteran's claim file and determined that the March 2006 adverse decision as to the timeliness of the Veteran's substantive appeal was an error. The RO determined the Veteran's December 2005 substantive appeal was timely submitted and, thus, he had perfect an appeal as to the issue of entitlement to TDIU. Accordingly, the RO certified the appeal to the Board for appellate review. In June 2012, the Board reviewed the Veteran's December 2005 substantive appeal and observed that he had requested a Board hearing. As such, the Board remanded the claim of entitlement to TDIU in order to provide him a hearing with a Board member. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 19.75, 19.76, 20.700(a) and (e), 20.703, 20.704 (2012). In May 2013, the Veteran participated in a Board hearing with the undersigned. As such, the Board finds that the RO complied with the June 2012 remand directives and, thus, a remand for corrective actions is not required. See Stegall, 11 Vet. App. at 271. Pursuant to his October 2000 claim of entitlement to TDIU, the Veteran was afforded a VA examination in November 2000. Generally, VA's duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The November 2000 VA examination was nearly 13 years ago. As such, the Board finds that it is too remote, and the evidence of record is otherwise inadequate, to assess whether the Veteran's service-connected disabilities prevent him from obtaining and retaining substantially gainful employment consistent with his education and experience. As such, the Board finds that a remand is required in order provide the Veteran another VA examination. Additionally, the Board observes that merits of the Veteran's above-captioned claim have not been adjudicated since October 2005. Since that adjudication, service connection for narcolepsy was granted via an April 2011 rating decision. A 10 percent disability rating was assigned to the Veteran's narcolepsy, effective July 26, 2001. Consequently, the Veteran's service-connected narcolepsy was not considered in the November 2000 VA examination or in the October 2005 adjudication of his claim. As such, the Board finds that remand is required in order for the RO to consider all of the Veteran's service-connected disabilities within the context of his claim of entitlement to TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Further, since October 2005, a substantial amount of relevant evidence has been associated with the Veteran's claim file and with his Virtual VA claims file. The Veteran has not submitted a waiver of RO review of this evidence and, thus, a remand is required in order for the RO to review it in the first instance. 38 C.F.R. §§ 19.37, 20.1304 (2012). Finally, during the May 2013 Board hearing, the Veteran indicated that additional relevant evidence existed, specifically private treatment reports, but that the evidence had not been associated with the claims file. The Veteran requested additional time in order to obtain and submit this evidence. Since the hearing, the Veteran has neither submitted nor identified additional evidence relevant to his above-captioned claim. The Board finds that a remand is warranted in order to obtain the Veteran's relevant VA treatment records and to afford the Veteran the opportunity to submit or identify any relevant evidence not already associated with his claims file. Accordingly, the case is REMANDED for the following action: 1. The RO must provide the Veteran with updated notice regarding his claim of entitlement to TDIU. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 2. The RO must request that the Veteran submit or identify all relevant evidence not already associated with his claims file. The RO must attempt to procure copies of all records that have not previously been obtained from identified treatment sources. The RO must also obtain all of the Veteran's relevant treatment records from the VA medical facilities in Birmingham, Decatur, and Marion, Alabama that have not already been associated with the claims file or Virtual VA. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. The RO must then make arrangements with the appropriate VA medical facility for the Veteran to undergo an examination. After a review of the entire evidence of record, including the Veteran's Virtual VA claim file and his Social Security Administration records, the examiner must provide an opinion as to whether the Veteran is unable to obtain and retain employment consistent with his education and occupational experience due to all of his service-connected disabilities, irrespective of age and any nonservice-connected disabilities. At present, service connection is in effect for (a) avascular necrosis of the left talus with secondary degenerative joint disease of the left ankle, assigned a 40 percent rating; (b) migraine headaches, assigned a 30 percent rating; (c) narcolepsy, assigned a 10 percent rating; (d) traumatic arthritis of the left knee, assigned a 10 percent rating; (e) grade one anterior cruciate ligament tear, left knee, assigned a 10 percent rating; and (f) hypertension, assigned a noncompensable rating. A complete rationale for any opinion must be provided. If the examiner cannot provide the requested opinion, it must be so stated, and the examiner must provide the reasons why the opinion could not be provided. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of his claim. 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 and associated with the his claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must also be obtained and associated with the Veteran's claims file that indicates whether any notice that was sent was received or returned as undeliverable. 5. The RO must review the resulting examination report in order to ensure that it complies with the directives of this remand. If the examination is deficient, the RO must undertake corrective actions before remitting the Veteran's claim to the Board. 6. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ L. M. BARNARD Acting 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).