Citation Nr: 1326173 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09 47-209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran had active military service from February 1962 to August 1963. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, denied a TDIU. In another decision issued later that year, in December 2008, the Veteran was declared incompetent to handle the disbursement of his VA benefits, effective December 16, 2008. His sister, Ms. R., resultantly is his legal custodian charged with receiving and disbursing his funds, including VA compensation. Very recently, in December 2012, Ms. R., acting on the Veteran's behalf, submitted a private medical statement from W.D.G., M.D., contemporaneously dated in December 2012, in support of this TDIU claim. Earlier, in February 2012, she had indicated that she was waiving the right to have the RO initially consider any additional evidence submitted. 38 C.F.R. § 20.1304(c) (2012). However, because this claim required further development before being decided on appeal, in February 2013 the Board remanded it to the RO via the Appeals Management Center (AMC) in Washington, DC, to obtain potentially relevant records from the Social Security Administration (SSA). These additional records since have been obtained, allowing the Board to proceed with its adjudication of this claim. In June 2013, again acting on the Veteran's behalf, Ms. R. sent a letter to the AMC stating she wanted to drop the appeal. Although the letter satisfied the requirements of 38 C.F.R. § 20.204 (2012) for withdrawing an appeal, another letter was received from her within a week that included an additional statement (medical opinion) from W.D.G., M.D., in support of the claim. Because the letter, which expounds on this doctor's earlier statement, and other evidence indicates her desire to continue pursuing this appeal, despite her seeming earlier withdrawal, this case remains in appellate status. Since, however, there is difference of opinion as to whether the Veteran's service-connected disabilities render him unemployable, the Board is again REMANDING this claim to the RO via the AMC in Washington, DC, but this time to obtain a supplemental medical opinion on this determinative issue to try and resolve this conflict in the evidence for and against the claim. REMAND VA regulations allow for the assignment of a TDIU when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). But even if service-connected disabilities fail to meet these percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration of a TDIU is warranted if the Veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). Although a March 2007 VA compensation examiner concluded the Veteran was capable of engaging in sedentary employment, despite his service-connected bronchitis and chronic obstructive pulmonary disease (COPD), a starkly contrary opinion was more recently received in June 2013 from W.D.G., M.D., indicating the Veteran is "totally unemployable due to his chronic bronchitis that is due to his Service Related [i.e., service-connected] bronchitis." But because this supporting medical opinion does not contain any explanatory rationale, which is where most of the probative value of an opinion is derived, it is insufficient to grant the claim and refute the prior unfavorable VA opinion. See, e.g., Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This supporting medical opinion is nonetheless sufficient to warrant obtaining additional comment from this doctor and another VA opinion because it remains unclear based on this conflicting evidence and lay statements of record whether the Veteran is indeed unable to obtain and maintain substantially gainful employment on account of his service-connected disability. The record also shows the Veteran has received treatment for his service-connected disability at Sr. Nursing and Rehab Center for the past 5 years. These records should be obtained and associated with the file for consideration in this appeal. 38 C.F.R. § 3.159(c)(1). Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. Ask the Veteran's custodian, Ms. R., to provide the names and addresses of all medical care providers that have evaluated or treated him for his service-connected disability since April 2008. Specifically ask for the treatment records of Dr. W.D.G. at Sr. Nursing and Rehab Center. And with any needed authorization, obtain all identified records that have not previously been obtained and that are not duplicates of those already in the claims file. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify the Veteran and his custodian of this in accordance with 38 C.F.R. § 3.159(c) and (e). 2. Aside from asking that he provide his treatment records, ask that Dr. W.D.G. of the Sr. Nursing and Rehab Center also provide explanatory rationale for his December 2012 and expounding June 2013 statements collectively concluding the Veteran is totally unemployable because of his service-connected disability (referring to his chronic bronchitis). Emphasize to this doctor that it is the discussion of the underlying medical rationale of the opinion, not just the conclusion ultimately reached, which is most essential to the opinion's probative value. So a bare, entirely conclusive, statement of unemployability is insufficient to sustain the claim. 3. After completing the above development, schedule another VA compensation examination for an additional medical opinion concerning the Veteran's TDIU claim. The examiner must be provided the claims file, including a complete copy of this remand and Dr. W.D.G.'s favorable opinion, and given opportunity to review the Veteran's medical and occupational histories to assist in making this important determination of employability. After reviewing the claims file containing this relevant evidence and personally examining the Veteran, the VA examiner is asked to provide a medical opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's service-connected chronic bronchitis and COPD preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training, etc., but without regards to his advancing age and any occupational impairment attributable to disabilities that are not service connected. To this end, the VA examiner should comment on the two conflicting opinions that are already of record, namely, the one obtained in March 2007 from the earlier VA compensation examiner versus the statements and opinion more recently submitted in December 2012 and June 2013 from Dr. W.D.G. (as well as any additional supplemental comment this doctor provides on remand). The VA compensation examiner's opinion, regardless of whether it's favorable or unfavorable to the claim, must include discussion of the underlying reasoning used to render the opinion and, if necessary, cite to specific evidence in the file. 3. Then readjudicate this TDIU claim in light of this and all other additional evidence. If this claim continues to be denied, in whole or in part, send the Veteran and his custodian and representative another Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).