Citation Nr: 1326022 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 07-09 892A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for acromioclavicular separation with healed fracture of the left clavicle, currently evaluated as 30 percent disabling. 2. Entitlement to a total evaluation based on unemployability due to service connected disability (TDIU). WITNESSES AT HEARING ON APPEAL Veteran and his psychiatrist ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from May 1978 to May 1982. This matter came before the Board of Veterans' Appeals (Board) from June 2005 and October 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago Illinois. The Veteran and his psychiatrist testified before the undersigned Veterans Law Judge via videoconference in November 2010. A transcript of the hearing has been associated with the claims file. The issue of entitlement to service connection for a psychiatric disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Veteran seeks a higher evaluation for his service-connected left upper extremity disability and a TDIU. Rating of Acromioclavicular Separation with Healed Fracture of the Left Clavicle Regarding the left upper extremity disability, the Board observed in its April 2012 remand that the Veteran had complained of neurological symptoms that he attributed to his service connected left shoulder disability. It was noted that in September 2011, a VA physician had reviewed the claims file and indicated that review failed to reveal any neurological abnormalities, and that previous examinations had indicated that no neurological component was present. However, the question was whether there were current neurological manifestations of the service-connected disability, and the Board held that the prior September 2011 file review on its own was inadequate to address this question. As such, the issue of entitlement to a higher rating for a left shoulder disability was remanded to afford the Veteran another VA examination-one that included a neurological evaluation. The requested VA examination was performed in April 2012. However, the examination report does not appear to address the question of whether neurological impairment is present in the upper extremity. Additionally, a review of the recent VA treatment records in the Virtual VA file shows that an April 2012 treatment provider recommended an EMG. In light of this recommendation, and in order to comply with the April 2012 remand instructions, additional remand is required to provide the Veteran with the previously requested neurological examination. When the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU The Veteran asserts that his left upper extremity disability renders him unemployable. Generally, under 38 C.F.R. § 3.340(a)(1), total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(b), a TDIU might be awarded even if the requisite schedular criteria is not met if a claimant is nevertheless shown to be "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities". Here, the Veteran's vocational rehabilitation file reveals that he served in the Marine Corps as a cook, and that his relevant post-service work has also been in food service, mainly as a cook. He has indicated that he has no college or vocational training. In October 2006 a medical consultant stated that the Veteran was unable to use his left arm for activities to include lifting, carrying, pushing, pulling, reaching, and handling. The Board concludes that there is evidence indicating that the Veteran might be unemployable due to his left upper extremity disability. As discussed in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). In the prior April 2012 remand instructions, the Board instructed that the issues on appeal be referred to the Director, Compensation and Pension Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). A review of the claims file and Virtual VA file suggests that this action was not completed. Instead, it appears that, in November 2012, the Appeals Management Center prepared a Memorandum in which entitlement to a TDIU on an extraschedular basis was denied. Preparation of the November 2012 memo does not satisfy the Board's April 2012 remand instructions. The Board specified that the issues on appeal be referred to the Director, Compensation and Pension Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). In order to comply with the April 2012 remand instructions, additional remand is required for this referral to be completed. When the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records dated since April 2012, to include the report of any EMG or other relevant diagnostic studies that may have been performed, and associate such records with either the paper file or Virtual VA file. 2. Schedule a VA examination to determine the current neurological manifestations of the Veteran's left upper extremity disability. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report. All indicated testing should be carried out and the results recited in the examination report. Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all neurological manifestations of the Veteran's left upper extremity disability. The examiner should discuss how the Veteran's left upper extremity disability impacts his activities of daily living and his ability to work. If any of the above inquiries cannot be addressed, the examiner should provide a complete explanation as to why they cannot be addressed. The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate. If the examiner determines that he is unable to provide the requested opinion(s) without resort to speculation, he must provide a reasoned explanation for such conclusion, which includes appropriate references to pertinent evidence of record. 3. Upon completion of the above, review the examination report for compliance with the Board's directives. Any deficiency should be addressed prior to recertification to the Board. 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the 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. 5. Refer both issues on appeal to the Director, Compensation and Pension Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). The AOJ must include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors bearing on the issue. 6. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ MICHAEL LANE 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).