Citation Nr: 1325916 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-28 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The issues of entitlement to increased ratings for the service connected peripheral neuropathy of the right and left upper extremities and of the right and left lower extremities has been raised by the record, but has not been developed for appellate review. Therefore, these issues are referred to the RO for appropriate disposition. The appeal is remanded to the RO. REMAND Generally, VA will award a total disability rating based upon individual unemployability (TDIU) when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). TDIU benefits are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth above, must be submitted to the Director, Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). In this case, service connection is in effect for diabetes mellitus with hypertension and retinopathy, rated as 20 percent disabling; peripheral neuropathy of the right and left lower extremities, each rated as 20 percent disabling; peripheral neuropathy of the right and left upper extremities, each rated as 10 percent disabling; and coronary artery disease, rated as 10 percent disabling. The Veteran has a combined rating of 70 percent, but does not have a single disability that is rated as 40 percent disabling or more. Thus, the threshold question in this case is whether his service-connected disabilities render him unemployable such that this matter must be referred to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran submitted a report of private vocational evaluation in December 2011. The Registered Nurse (RN) that completed this report did not examine the Veteran, but did review "Documents from the Veterans Administration." It is unclear as to whether these documents included the entire claims file. The only records the RN referred to in the report were the April 2008 rating decision, May 2010 VA examination reports, May 2010 rating decision, and September 2011 statement of the case. The RN noted several findings from the May 2010 VA examination report, but failed to address the examiner's findings that the veteran has "mild peripheral neuropathy of all 4 extremities. His complaints are wildly exaggerated and nonsensical and are medically not credible." Despite this opinion, the December 2011 RN relies upon these findings to conclude that the Veteran has peripheral neuropathy, which "restricts the use of his bilateral upper and lower extremities to the point that he cannot engage in substantially gainful employment. Sedentary work, which involves sitting the majority of the shift, requires at least average use of the bilateral upper extremities, which [the Veteran] does not have." Because this private RN did not examine the Veteran, did not review the complete record, and did not note pertinent information from the examination report upon which the opinion relied, the Board finds that this opinion's probative value is diminished. However, it does at least raise the question as to whether the Veteran's service connected disabilities render him unemployable. The Board also notes that additional evidence in the claims file potentially suggests for a finding of unemployability. As early as July 2000, a VA examiner reported that due to his difficulty with fine motor movements, the Veteran had problems at work because he could not manipulate the parts he was machining, and that his productivity had fallen due to his hand problems. A March 2008 VA examiner noted that the Veteran's memory loss, lack of stamina, weakness, fatigue and pain causes increased tardiness at work, and also noted that the Veteran cannot do a sit-down job because, according to the Veteran, his sugars will go sky high. However, again, the May 2010 VA examiner suggested that the Veteran's report of symptoms was "wildly exaggerated." More recently, a July 2013 VA examiner suggested that the Veteran has no functional limitations due to his service connected disabilities, although this examiner only examined the Veteran's peripheral neuropathy. The report of this examination is found within the Veteran's electronic claims file. Thus, the evidence in this case suggests that the Vetera may be unable to obtain and maintain substantially gainful employment due to his service-connected disabilities, but there has yet to be a comprehensive examination of the Veteran and evaluation of this question. In a claim for TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1994). Because this duty to assist has not yet been fulfilled, this matter must be remanded for examination. Additionally, the Board notes that the Veteran filed his TDIU claim informally and has not been provided a VA Form 21-8940. Clarification from the Veteran is needed with respect to his post-service employment history. As such, the Board finds that the RO must attempt to obtain a detailed, post-service work history from the Veteran. Further, VA inquired with the Social Security Administration (SSA) and determined that the Veteran's SSA claim was denied. Although the Veteran may not be receiving benefits, the Board presumes the decision on the claim was based upon certain relevant records, to potentially include medical records that are pertinent to the claims under appeal. However, there is no indication in the record that the RO requested the Veteran's records from SSA. Generally, when VA is on notice that there are SSA records, it must obtain and consider them. See Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). As such, the RO must attempt to obtain all documentation, including treatment reports, associated with the Veteran's application for SSA disability benefits. As to VA outpatient treatment records, the evidence of record includes records from the Cincinnati VA healthcare system, the Hamilton Civilian Based Outpatient Clinic (CBOC) in particular, dated in April 2010. No updated records are included in the evidence of record. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Under these circumstances, the RO must, with the assistance of the Veteran, obtain all relevant VA clinical records dated since April 2010. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran to request that he identify or submit any additional pertinent evidence in support of his claim, to include all VA and non-VA medical providers who have treated him for any service-connected disorder during the course of this appeal. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain the Veteran's updated treatment records since April 2010 from the Hamilton CBOC. The RO must also contact SSA for the purpose of obtaining all documentation associated with the Veteran's claim for SSA disability benefits. 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 and his representative must then be given an opportunity to respond. 2. The RO must provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO, for the purpose of obtaining a detailed, post-service work history 3. Thereafter, the Veteran must be afforded an appropriate VA examination to determine to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities of diabetes mellitus with hypertension and retinopathy, peripheral neuropathy of the bilateral upper and lower extremities, and coronary artery disease, render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 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. The report prepared must be typed. 4. The RO must 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. 5. After the examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. An examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 6. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).