Citation Nr: 1327382 Decision Date: 08/27/13 Archive Date: 09/24/13 DOCKET NO. 09-39 200 ) DATE AUG 27 2013 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to October 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision, in which the RO denied, inter alia, entitlement to TDIU. In March 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2009. In a June 2011 rating decision, the RO granted the Veteran's service connection claims relating to diabetic peripheral neuropathy of the right and left upper extremities. In an April 2012 rating decision, the RO granted the Veteran's service connection claim relating to diabetic renal disease with hypertension, as well as Dependents' Educational Assistance. In January 2012 and May 2012, the Veteran's attorney issued NODs with the June 2011 and April 2012 rating decisions. In November 2012 correspondence, the Veteran's attorney notified the RO that the Veteran was withdrawing the NODs with the June 2011 and April 2012 rating decisions. In June 2013, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents, other than the hearing testimony, pertinent to the present appeal. For the reasons expressed below, the matter on appeal is being remanded to the RO, VA will notify the Veteran when further action, on his part, is required. -2- REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, service connection is currently in effect for PTSD (rated as 70 percent disabling);diabetic renal disease with hypertension (rated as 60 percent disabling); diabetes (rated as 20 percent disabling), peripheral neuropathy of the right upper extremity (rated as 30 percent disabling);peripheral neuropathy of the left upper extremity (rated as 10 percent disabling); and peripheral neuropathy of the right and left lower extremities (rated as 20 percent disabling, each). Although a 100 percent combined rating is in effect from October 13, 2010, as no single disability is rated as 100 percent disabling, and the Veteran's attorney has indicated that special monthly compensation benefits may be sought, the claim for a TDIU has not been rendered moot. Cf. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Board has briefly summarized the evidence currently of record that pertains to the matter of the Veteran's entitlement to a TDIU below. On April 2008 VA psychological evaluation, the examiner essentially indicated that the Veteran was not unemployable due to PTSD symptoms, however there was serious interference of PTSD symptoms that would affect his workplace performance. -3- On February 2010 VA psychological evaluation, the examiner found that based on the Veteran's dementia he was unable to determine the current level of impairment without resorting to mere speculation, as the dementia was interfering with the Veteran's ability to adequately report his symptoms. He indicated that the Veteran's current level of impairment also included the nonservice-connected dementia. In the report of a May 2011 VA peripheral nerves examination, the examiner indicated that the Veteran's peripheral neuropathy had no effect on his occupation. A July 2011 VA hypertension examiner opined that the Veteran's impaired renal function and hypertension was secondary to the service-connected diabetes mellitus. The examiner indicated that the hypertension does not affect the Veteran's occupation, but did not comment upon the impact of the Veteran's diabetic renal function on his Veteran's employ ability. As noted, a March 2009 rating decision denied the Veteran's TDIU claim. A September 2009 SOC and January 2012 supplemental SOC reflect the RO's continued denial, primarily based on a finding that the Veteran's PTSD—his highest rated disability—does not preclude employment. As noted, however, since the RO's last adjudication of the claim for a TDIU, the Veteran has been granted service connection for significant additional physical disability associated with diabetes mellitus—namely, diabetic renal disease with hypertension, rated as 60 percent disabling, from June 8, 2010 The Board notes, initially, that, for due process reasons, the RO must adjudicate the matter of the Veteran's entitlement to a TDIU based on consideration of all of his service-connected disabilities, in the first instance, to avoid any prejudice to the Veteran. See, e.g., Bernard v. Brown, 3 Vet. 384, 394 (1993). The Board also finds that prior to such consideration, further development of the claim is warranted. As indicated above, recent efforts to obtain an opinion as to the impact of the Veteran's service-connected psychiatric disability on his ability to obtain or retain substantially gainful employment have been frustrated by the development of -4- dementia, as noted by the November 2010 psychologist. However, the Veteran also has service-connected diabetes mellitus, as well as peripheral neuropathy of each upper and lower extremity, and renal disease with hypertension associated with his diabetes; renal disease, alone, is rated as 60 percent disabling. While the record includes comment by various examiners with respect to the functional impairment of individual physical disabilities, notably, no medical professional has addressed whether the Veteran's service-connected disabilities, in the aggregate (i.e., jointly), render him unable to secure or follow a substantially gainful occupation. The Board finds that such an opinion would be helpful in resolving the claim for a TDIU. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, on remand, the RO should arrange for the Veteran to undergo VA examination by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that, failure to report to the scheduled examination, without cause, may well result in denial of the claim for a TDIU. 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. If, for mental and/or physical reasons, the Veteran simply is unable to report to any medical examination, the RO should forward the claims file to a physician for review and provision of the requested findings/opinion. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. The Veteran should be given another opportunity to provide information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). -5- Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year . period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. -6- 3. After all records and/or responses from each contact have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a single VA examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. Based on examination of the Veteran, and review of the record, the physician should describe the functional effects of each service-connected physical disability— specifically diabetes mellitus, peripheral neuropathy of each upper and lower extremity, and renal disease with hypertension—on the Veteran's ability to perform the physical acts required for substantially-gainful employment. Then, the physician should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that—without regard to the Veteran's age or impairment from any nonservice-connected disability(ies)—the Veteran's service-connected disabilities, either individually or in concert, render(s) him unable to obtain or retain substantially gainful employment. In rendering the requested opinion, the physician should consider and discuss the pertinent medical and other evidence of record, including the prior VA examination -7- reports which reflect evaluation of individual service-connected disabilities. If, for mental and/or physical reasons, the Veteran simply is unable to report to any medical examination, the RO should forward the claims file to a physician for review and provision of the requested findings/opinion. The physician should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for a TDIU in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action -8- until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). 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 the appeal. 38 C.F.R. § 20.1100(b) (2012). -9-