Citation Nr: 1326780 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-45 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to October 1954. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Providence, Rhode Island, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in November 2012. A transcript of the hearing is associated with the claims file. The Board remanded this case for further development in January 2013 and June 2013. The record does not show that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Unfortunately, another remand is necessary in this case. In the January 2013 and June 2013 remand, the Board requested a medical examiner's opinion concerning the impact of the Veteran's service connected disabilities on his ability to work, to include unemployability. This request was made in light of a January 2012 addendum opinion that found that that the Veteran was unemployable due to his cardiac and pulmonary problems as well as his advanced age. However, a TDIU determination must be made without regard to the Veteran's age. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). In response to the January 2013 remand, the Veteran underwent a February 2013 VA examination. That examiner noted the Veteran's 30+ year history of stable and consistent employment prior to his retirement in 1993 and only one reported reprimand during that period, despite the Veteran's complaints of coworker relationship difficulties due to his PTSD symptom of irritability. Based on this, the February 2013 VA examiner found no evidence to suggest that the Veteran was incapable of employment based on his history of PTSD alone and that it was more likely that the Veteran's advanced age and current health and sensory impairments would represent a greater barrier to employment. In a June 2013 remand, the Board noted that this opinion did not reflect consideration of the Veteran's current level of disability and that this examiner's reference to "sensory impairments" suggested that the Veteran's service connected hearing loss and tinnitus may likewise detract from his employability. Thus, the examiner was asked to consider whether all of the Veteran's service connected disabilities, at their current level of severity, rendered the Veteran unable to secure or follow substantially gainful employment consistent with his education and occupational experience. In response to the June 2013 remand, the February 2013 VA examiner, in a July 2013 addendum, stated: Based on the clinical interview conducted on 2/27/13, I did not find evidence that the veteran's PTSD symptoms had worsened relative to the prior assessments conducted in 2010 and 2011. Likewise, I also note that the veteran met the absolute minimal criteria necessary for a PTSD diagnosis. While the veteran reports his symptoms have worsened, there is not strong diagnostic evidence of this, as he would not have met full criteria for PTSD in the past (given that he meets only minimal criteria currently). Likewise, I do not have evidence that the veteran's PTSD symptoms were so severe that they alone would preclude him from successful employment. As I am not an audiologist, I cannot conclude to what extent hearing loss alone or in combination with PTSD would prevent the veteran from maintaining gainful employment. I did state that his advanced age and sensory deficits hold the potential to be barriers to employment, though this is based on the practicalities and realities of being an elderly gentleman with hearing loss, and not based on formal medical evaluation of physical fitness or audiological function which is outside my scope of practice as a psychologist. In this way, the July 2013 addendum failed to adequately respond to the remand instructions. This addendum provided only an opinion regarding the impact of the Veteran's PTSD on his employment, not the combined impact of all of the Veteran's service connected disabilities. Likewise, while this addendum found that there was no worsening of the Veteran's PTSD symptoms since the prior examinations in 2010 and 2011, it did not address the Board's concern that the earlier opinion in February 2013 referenced the Veteran's employability up until his retirement in 1993. As the prior opinion dealt with the severity of the Veteran's disability twenty years ago, a finding that his symptoms have not changed in the past three years does not fix the inadequacies of the prior opinion. Additionally, it does not appear that the Appeals Management Center (AMC) attempted to supplement this addendum with evidence of the impact the Veteran's service connected hearing loss and tinnitus have on his employability. Currently, the record contains two such statements regarding the impact of the Veteran's hearing loss and tinnitus on his employability. The January 2010 VA audiology examiner found that the Veteran would have difficulty hearing soft speech or hearing speech in noise. Additionally, the November 2011 VA audiology examiner found that the Veteran's hearing loss affected his ability to work in that he felt he missed parts of conversations, but his hearing aids helped. Neither of these statements were considered by the February 2013 VA examiner. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). As the July 2013 addendum opinion did not adequately address the June 2013 remand instructions, another remand is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the examiner who provided the February 2013 examination in connection with the Veteran's claim for a higher initial rating for PTSD, if she is still available, provide an addendum opinion addressing the Veteran's PTSD symptoms during the pendency of this appeal (since November 2009), particularly their impact on the Veteran's employability. The examiner is then asked to consider the existing evidence regarding the impact the Veteran's service connected hearing loss and tinnitus have on his employability to determine whether the Veteran's service connected disabilities in combination with each other render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. Specifically, she is directed to consider the statements contained in the January 2010 and November 2011 VA audiology examinations. If this examiner still feels that she is unable to comment on the Veteran's overall employability, she should so state. (If the February 2013 VA examiner is no longer available, refer the claims folder for review by a VA clinician with appropriate expertise for an opinion on this question. The Veteran's claims file, including a copy of this remand, must be made available to the reviewer for review in connection with the requested opinion.) 2. If the February 2013 examiner feels that she is unable to comment on the Veteran's overall employability, then the claims file including her addendum opinion, reflecting the specific impact that the Veteran's PTSD symptoms have on his employability, should be forwarded to a VA audiologist in order to determine whether the Veteran's service connected disabilities (PTSD, hearing loss, and tinnitus) in combination with each other render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. Such an opinion should be based on a review of the claims folder, to include the information regarding the Veteran's employment and educational history contained therein. 3. Ensure that the medical evaluation(s) comply with this remand and the questions presented in the request. If the report is insufficient, return it to the examiner for corrective action as appropriate. 4. Thereafter, readjudicate the issue of entitlement to TDIU in light of the additional evidence obtained. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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).