Citation Nr: 1326005 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 07-24 485A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active duty from June 1970 to February 1974. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which continued the 40 percent evaluation for a service connected lumbosacral strain, and a March 2008 rating decision of the St. Petersburg, Florida, VARO, which denied entitlement to TDIU. In December 2010, the Board remanded the case for further development. In March 2013, the Board denied an increased rating for lumbosacral strain and remanded the issue of TDIU for additional development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This paperless file contains additional documents, including additional VA treatment records. These additional documents were considered in conjunction with this decision. 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 The appeal was remanded to obtain a medical opinion on whether the Veteran's service connected low back and associated lower extremity sciatica precluded gainful employment. Recently obtained VA Vocational Rehabilitation (Voc Rehab) files show that the Veteran had participated in the Voc Rehab program. She is shown to have a Masters degree and work history involving sedentary employment. However, April and July 2012 assessments concluded that her vocational goals were not feasible and recommended that she discontinue Voc Rehab due to medical disability. It does not appear that such assessments were made solely on her service connected disabilities. She has various non-service connected disabilities to include: a neck disability, bilateral knee replacement, and psychiatric disorders. The examiner conducting the April 2013 VA examination commented that the Veteran's low back disability would preclude jobs requiring prolonged walking, sitting, and climbing due to pain. The examiner also determined that service connected sciatica was mild and would not interfere with employment. However, the following month, the Veteran reported that she had a sudden exacerbation of her sciatica and was recommended to use a walker. She sought medical attention again in June 2013 for increased low back and sciatic pain. Further clarification is needed. The Voc Rehab reports suggest that the Veteran is wholly unemployable, but appear to have considered non-service connected disabilities. The VA examiner's statements are ambiguous as to whether sedentary employment is possible by considering only her service connected disabilities. For TDIU purposes, the non-service connected disabilities cannot be considered in determining her occupational capacity. The examiner also did not have an opportunity to consider her May and June 2013 reports of an increase in left sided sciatica and low back pain, respectively. Another medical opinion is necessary as detailed below. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the April 2013 VA examiner for a TDIU medical opinion. The claims folder with the VA Vocational Rehabilitation files and any pertinent documents within the electronic Virtual VA or VBMS folders must be available and re-reviewed by the examiner. If additional clinical examination is deemed necessary, this should be scheduled. Based upon review of the record, with particular attention to the VA Vocational Rehabilitation reports and updated May and June 2013 reports, the examiner must provide the following opinion: Is it at least as likely as not (i.e., 50 percent probability or more) that the Veteran's service-connected low back and associated sciatica render her unable to obtain or retain substantially gainful employment consistent with her occupational experience? The opinion should consider the Veteran's education at the Master's degree level, special training, and previous work experience in sedentary positions, but should not consider her age or the effect of any non-service-connected disorders. The service-connected disabilities are lumbar spine disability and associated lower extremity sciatica. The examiner must provide detailed rationale to support his or her opinion. If the requested opinion cannot be given, the individual conducting the survey should state the reason(s) why the opinion could not be offered and any missing evidence that would facilitate a non-speculative opinion. 2. Following the completion of the requested action and any additional development deemed necessary, the RO should then re-adjudicate the Veteran's TDIU claim. If the benefits on appeal remain denied, the Veteran and her representative should be provided with a supplemental statement of the case (SSOC) and afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ J. A. MARKEY 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).