Citation Nr: 1326335 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 05-23 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1979 to April 1985. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA). The matter was most recently before the Board in March 2012, at which time the Board remanded the issue of entitlement to TDIU. The appellant testified before the undersigned at hearings in December 2008 and December 2011; transcripts of the hearings are on file. 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 In March 2012, the Board remanded the Veteran's claim for entitlement to TDIU for appropriate development. On remand, the RO/AMC was instructed to contact the Veteran to obtain contact information and appropriate releases for all VA and non-VA treatment providers, schedule the Veteran for an examination to determine the effect of his service-connected disabilities on his ability to secure or follow substantially gainful employment, and then to adjudicate the claim for TDIU. The Board notes that while there is a suggestion in the Veteran's Virtual VA record that the Veteran was provided examinations related to various service connected conditions (as provided in the list of evidence included in the narrative of the May 21, 2013 rating decision that adjudicated claims for increased ratings for adjustment disorder and a chronic lumbar strain, and service connection for radiculopathy of the bilateral lower extremities), none of the reports from any medical examinations conducted have been associated with the claims file, or the Veteran's Virtual VA or Veterans Benefit Management System (VBMS) electronic records. Even if the examination(s) the Board ordered in the March 2012 remand have been performed, however, further development ordered in the same remand is yet to be completed, and the examination reports generated may be insufficient depending on the outcome of the additional necessary development. Specifically, there is no suggestion in the record that the RO/AMC contacted the Veteran to obtain the names, addresses, and dates of treatment of his medical providers, or that any effort was made to obtain such records, if they exist. Any records that may exist could impact an examiner's opinion concerning the Veteran's employability, and must be available to the examining provider. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As there is no suggestion that the RO/AMC contacted the Veteran regarding his ongoing treatment records, this matter must again be remanded. The Board also takes note that, in addition to the examination reports discussed above, certain other records may be missing from the record before the Board. According to a September 2012 deferred rating decision, the RO/AMC sent the Veteran a Supplemental Statement of the Case (SSOC) addressing the TDIU issue; that SSOC is not currently in the claims file or the Virtual VA or VBMS records. That deferred rating decision also indicated that there were four temporary folders that could "now be combined into the claims folder and should be, prior to BVA review." The RO/AMC should ensure that the Veteran's claims file is complete prior to returning it to the Board. Accordingly, the case is REMANDED for the following action: 1. Ensure that all documents and evidence related to the Veteran's claims are associated with the claims file. This includes any outstanding examination reports, supplemental statements of the case, temporary folders, and all other sources of information in VA's possession related to the appeal. 2. Contact the Veteran and request that he provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for service-connected disabilities. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. If the examination ordered in the March 2013 remand has been provided the Veteran, the following two actions must be taken: a) Associate all examination reports with the claims file or the Virtual VA record. b) Determine if any additional records obtained pursuant to the instruction above are relevant to the Veteran's claim for TDIU. If relevant records not previously included in the claims file are obtained, return any examination report that addresses the issue of the Veteran's employability to the examiner who provided the examination, and obtain an addendum that addresses the impact of the new evidence on the reported findings, as necessary. If the ordered examination has yet to be performed, schedule the Veteran for a VA examination(s) for the purpose of determining the impact that his service-connected disabilities have on his ability to obtain and maintain substantially gainful employment. The claims file must be made available to the examiner prior to completion of the evaluation. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file and Virtual VA. The examiner should include a discussion of all functional impairment caused by the service connected disabilities, specifically as to how it would relate to appellant's ability to obtain or maintain employment, given his occupational experience and educational background. The examiner should reconcile his or her opinion with all other clinical evidence of record. A complete rationale should be provided for any opinion expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report(s) to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. 5. After completing any additional development deemed necessary, readjudicate the claim of entitlement to TDIU. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case, which addresses all of the evidence obtained after the issuance of the Statement of the Case, and provided an opportunity to respond. The case should then 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). _________________________________________________ MICHAEL D. LYON 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).