Citation Nr: 1325630 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 03-35 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to August 29, 2009 REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1997 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from adverse determinations issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2005, the Veteran testified during a hearing at the RO before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately a review of the evidence in this case reveals that the RO did not comply with the Board's September 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). While some of the ordered development was accomplished, such as contacting some of the Veteran's employers and obtaining a VA medical opinion, other action requested by the Board was not completed. Specifically, in September 2012, the Board remanded the Veteran's case to the RO via the AMC and directed that if the schedular requirements set forth in 38 C.F.R. § 4.16(a) (2012) were not met prior to August 29, 2006, the Veteran's claim for a TDIU should be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extra-schedular evaluation for the period prior to August 28, 2006. From January 15, 2001 to January 28, 2001 The record demonstrates that the Veteran met the schedular requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) for the period from January 29, 2001 to August 28, 2006. However, the Veteran's service-connected disabilities have been evaluated as 30 percent disabling from January 15, 2001 to January 28, 2001 and, as such, the Veteran did not meet the schedular requirements during this period. For the period from January 15, 2001 to January 28, 2001, while the Veteran does not appear to have met the percentage requirements for TDIU, VA policy is to grant that benefit in all cases where service connected disabilities prevent a veteran from engaging in gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 4.16(a), (b) (2012). The Board cannot grant a TDIU in the first instance where a veteran fails to meet the percentage requirements, but must first insure that the claim is referred to VA's Director of Compensation and Pension for initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). There is no indication the Veteran's claim was referred for consideration of assignment of an extraschedular evaluation for the period from January 15, 2001 to January 28, 2001, as directed by the Board. Id. From January 29, 2001 to August 28, 2006 Other development ordered by the Board in its September 2012 remand was not accomplished. As directed, the claims file was provided to a VA examiner in February 2013 for an opinion with respect to whether the Veteran's service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation at any date prior to August 29, 2006. The VA examiner noted that the Veteran had a diagnosis of degenerative disc disease of the thoraco-lumbar spine and that multiple entries dated prior to August 2006 reflected that the Veteran was very symptomatic from her service-connected lumbar spine condition. The VA examiner found that, between August 2004 and August 2006, the Veteran would have been unable to perform job duties that required repetitive bending, stooping, crawling, or lifting and carrying moderate to heavy weight. However, this would not affect sedentary employment with the exception that she would have had to be able to stand up and walk around for a few minutes every one to two hours. The VA examiner stated that she was unable to provide the requested opinion without resorting to speculation, as the VA examiner did not know the Veteran's level of education, work experience, job availability, and the salary level necessary for substantial, gainful employment in her professional area. The February 2013 VA examiner provided an insufficient medical opinion for purposes of determining entitlement to a TDIU prior to August 29, 2006. See Jones v. Shinseki, 23 Vet. App. 382 (2010). It does not appear that the VA examiner considered all of the Veteran's service-connected disabilities when determining entitlement to a TDIU; rather, the VA examiner focused solely on the Veteran's service-connected thoraco-lumbar spine. The Board notes that, during the period in question, the Veteran's service-connected disabilities included a cervical sprain, dysthymic disorder, a thoraco-lumbar spine disability, sinusitis with headaches, a lumbar strain, a thoracic strain, right and left lower extremity neuropathy associated with a thoraco-lumbar spine disability, a right ankle sprain, and bilateral optic nerve head drusen. The February 2013 VA examiner did not consider all of the Veteran's service-connected disabilities, and the VA opinion is inadequate for purposes of determining entitlement to a TDIU from January 29, 2001 to August 28, 2006. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). It also does not appear that the VA examiner reviewed the evidence regarding the Veteran's professional occupation or education. Furthermore, it appears that additional evidence pertinent to the Veteran's appeal was associated with the claims file following the VA examination. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006). Additionally, the Board's September 2012 Remand instructed that the RO contact each employer listed on the Veteran's December 2011 VA Form 21-8940 and request a completed VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits. The record shows that, in February 2012, the RO sent requests to Veterans Upward Bound and the Oklahoma Medical Research Foundation (OMRF). The record does not reflect that requests were sent to the Paula Thurman Group and Pricer Motors, both of which the Veteran reported on her December 2011 VA Form 21-8940. See Stegall, supra. As such, the RO/AMC should contact these two employers and request a completed VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits regarding the Veteran's employment. Finally, it appears that the RO reviewed evidence not currently associated with the claims file and available for Board review. The April 2013 supplemental statement of the case (SSOC) indicates that the RO reviewed the Veteran's VA Vocational Rehabilitation file prior to re-adjudicating the claim on appeal. However, the Veteran's VA Vocational Rehabilitation file is not associated with the claims file. The Veteran's claims file or Virtual VA file must contain all evidence reviewed by the RO/AMC in conjunction with the Veteran's claim. As such, on remand, the RO/AMC should associate all records reviewed in conjunction with the Veteran's claim to specifically include her VA Vocational Rehabilitation file. Accordingly, the case is REMANDED for the following actions: 1. Contact the Paula Thurman Group and Pricer Motors and request each entity to return a completed VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, regarding the Veteran's employment. 2. Associate with the claims file all the records reviewed in conjunction with the adjudication of the Veteran's claim, to specifically include her VA Vocational Rehabilitation file. If any record cannot be located, that fact should be noted in the record. 3. After accomplishing the development requested above, refer the Veteran's file and a copy of this Remand to a VA physician with appropriate expertise to provide an opinion regarding whether her service-connected disabilities (cervical sprain evaluated as 10 percent disabling from January 15, 2001 and as 60 percent disabling from January 29, 2001; dysthymic disorder, evaluated as 50 percent disabling from April 12, 2005; thoraco-lumbar spine, evaluated as 40 percent disabling from July 21, 2006; sinusitis with headaches, evaluated as 10 percent disabling from January 15, 2001 and as 30 percent disabling from March 30, 2003; lumbar strain, evaluated as 10 percent disabling from January 15 2001 to July 21, 2006; thoracic strain, evaluated as 10 percent disabling from January 15, 2001 to July 21, 2006; right and lower extremity neuropathy associated with thoraco-lumbar spine, each evaluated as 10 percent disabling; a right ankle sprain and bilateral optic nerve head drusen, each assigned non-compensable disability evaluations) rendered her unable to secure or follow a substantially gainful occupation at any date prior to August 29, 2006, without regard to her non-service-connected disabilities or her age. a. The examiner should describe the functional effects caused by the Veteran's service-connected disability(ies) that affected her employability. b. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Thereafter, refer the Veteran's claim for a TDIU prior to August 29, 2006 to the Under Secretary for Benefits or the Director of Compensation and Pension Services for extraschedular consideration for the period from January 15, 2001 to January 28, 2001. 5. Re-adjudicate the claim of entitlement to a TDIU from prior to August 29, 2006. If the claim continues to be denied, the Veteran and her representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ D. J. DRUCKER 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).