Citation Nr: 1326157 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 07-09 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran had active service from August 1974 to July 1976 and from March 1984 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied, in pertinent part, the Veteran's TDIU claim. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In July 2010 and December 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. Unfortunately, as is explained below, 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 Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's TDIU claim can be adjudicated. The Veteran contends that his service-connected disabilities alone or in combination prevent him from securing and maintaining substantially gainful employment, entitling him to a TDIU. This claim was Remanded by the Board in July 2010 and December 2012 for further development. In December 2012, the Board Remanded the claim for TDIU for an addendum opinion from the August 2010 VA examiner, as the August 2010 VA examination report did not comply with the July 2010 Remand directives. In the July 2010 Remand, the Board specifically asked the VA examiner to provide a complete rationale for any opinion concerning the impact of the Veteran's service-connected disabilities in combination on his employability. As noted in the December 2012 Remand, a review of the August 9, 2010, VA general medical examination showed that it is inadequate for purposes of evaluating the Veteran's TDIU claim. A review of this examination report shows that the VA examiner opined, "[The Veteran] is able to obtain and secure a financially gainful job of regular type." No rationale was provided for this opinion concerning the Veteran's employability although it was offered for multiple service-connected disabilities (including nummular dermatitis (eczema), reflux esophagitis with gastritis, internal hemorrhoids, and bilateral maxillary sinusitis) examined as part of this examination report. Further, the August 2010 VA examiner failed to address the impact of the Veteran's service-connected disabilities in combination on his employability. Upon determining that the August 2010 VA examination report was inadequate, the December 2012 Remand directed that, the examination report should be returned to the August 2010 VA examiner for an addendum, which includes a complete rationale for the opinion concerning the impact of the Veteran's service-connected nummular dermatitis (eczema), reflux esophagitis with gastritis, internal hemorrhoids, and bilateral maxillary sinusitis on his employability. The Remand directive also provided that the examiner should offer an opinion regarding the impact of the disabilities, in combination, on the Veteran's employability. The Board also noted that if the August 2010 VA examiner was not available, the Veteran should be provided with a new VA examination that addresses the impact of all of his service-connected disabilities, alone or in combination, on his employability. The examiner was advised that service connection is currently in effect for benign prostatic hypertrophy, cervical spondylosis, degenerative disc disease with spondylosis of the lumbar spine, radiculopathy of the right upper extremity associated with cervical spondylosis, status-post right knee meniscal injury with residual patellofemoral dysfunction and osteoarthropathy, left knee degenerative joint disease and patellofemoral dysfunction, right shoulder impingement syndrome and degenerative joint disease, right eye macular degeneration, bilateral tinnitus, reflux esophagitis with gastritis, nummular dermatitis, L5-S1 radiculopathy of the right lower extremity associated with degenerative disc disease with spondylosis of the lumbar spine, L5-S1 radiculopathy of the left lower extremity associated with degenerative disc disease with spondylosis of the lumbar spine, pes planus of the right foot, cataracts, bilateral maxillary sinusitis, internal hemorrhoids, a surgical scar of the right neck, and a surgical scar of the right knee. Following the December 2012 Remand, an addendum opinion was obtained from the August 2010 VA examiner, in January 2013; however, the examiner again provided conclusive opinions without rationale and failed to address the impact of the disabilities, in combination, on employability. Specifically, the examiner addressed the four service-connected disorders indicated in the prior remands (nummular dermatitis (eczema), reflux esophagitis with gastritis, internal hemorrhoids, and bilateral maxillary sinusitis) and for each one, noted that the Veteran was "able to obtain and secure a financially gainful job of regular type." The examiner noted that with respect to reflux esophagitis with gastritis, internal hemorrhoids, and bilateral maxillary sinusitis, there was no evidence of the disorders in the examination done in August 2010. The examiner did not offer any further rationale or address the impact of the disabilities in combination on the Veteran's employability. Furthermore, it has now been some three years since the date of the examination finding no evidence of these disorders. The January 2013 VA addendum opinion is essentially the same as the opinion offered in August 2010 and remains inadequate. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO/AMC to re-certify this appeal to the Board in March 2013 without complying with the December 2012 remand instructions. Given this error, another remand is required. On Remand, the Veteran should be provided with a new VA examination conducted by a different VA examiner, to determine whether his service-connected disabilities, either singularly or jointly, cause him to be unemployable. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a new in-person VA examination which addresses the impact of his service-connected disabilities, alone or in combination, on his employability. The Board notes that all of the Veteran's service-connected disabilities are listed on the following pages. The claims file and a copy of this remand should be provided to the examiner for review. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete employment history, if possible. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the impact of his service-connected disabilities on his employability, the examiner is asked to opine whether the Veteran's service-connected disabilities alone or in combination preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. The examiner must provide a complete rationale for any and all opinions expressed, and the Veteran's lay statements regarding his symptomatology and the impact of his service-connected disabilities on his employability must be considered and discussed. . The examiner is advised that service connection is currently in effect for the following: (a) benign prostatic hypertrophy; (b) cervical spondylosis; (c) degenerative disc disease with spondylosis of the lumbar spine; (d) radiculopathy of the right upper extremity associated with cervical spondylosis; (e) status-post right knee meniscal injury with residual patellofemoral dysfunction and osteoarthropathy; (f) left knee degenerative joint disease and patellofemoral dysfunction; (g) right shoulder impingement syndrome and degenerative joint disease; (h) right eye macular degeneration; (i) bilateral tinnitus (j) reflux esophagitis with gastritis; (k) nummular dermatitis; (l) L5-S1 radiculopathy of the right lower extremity associated with degenerative disc disease with spondylosis of the lumbar spine; (m) L5-S1 radiculopathy of the left lower extremity associated with degenerative disc disease with spondylosis of the lumbar spine; (n) pes planus of the right foot; (o) cataracts; (p) bilateral maxillary sinusitis; (q) internal hemorrhoids; (r) a surgical scar of the right neck, and; (s) a surgical scar of the right knee. The examiner also is advised that the Veteran contends that his service-connected disabilities alone or in combination preclude him from securing and following substantially gainful employment. 2. The Veteran should be given adequate notice of the date, time and location of the requested examination, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 3. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant 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 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). _________________________________________________ B. MULLINS 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).