Citation Nr: 1327598 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 08-03 505A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for nicotine dependence as secondary to service-connected disability. 2. Entitlement to an increased rating for anxiety disorder, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from December 1968 to June 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that decision, the RO denied the Veteran's claim for service connection for nicotine dependence and his claim for an increased rating for his service-connected anxiety disorder, as well as his claim for entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). The Veteran perfected an appeal to the Board, which remanded the Veteran's claims most recently in April 2012. In that remand the Board instructed the agency of original jurisdiction (AOJ) to provide the Veteran with a VA examination and then re-adjudicate the claims. In pertinent part, the AOJ scheduled the Veteran for VA psychiatric examination, which was conducted in June 2012. The AOJ the issued the Veteran a supplemental statement of the case (SSOC) in March 2013 in which it again denied the Veteran's claim for increase. Thus, as to the issue decided herein, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that 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). Additionally, in an October 2011 statement to VA, the Veteran indicated that he believes he has sleep apnea that developed secondary to his service-connected anxiety disorder. The Board thus infers a claim for service connection for sleep apnea. As this claim has not been adjudicated by the RO, it is not before the Board; hence, it is referred to the AOJ for appropriate action. The decision below addresses the Veteran's claim for a disability rating higher than 30 percent for anxiety disorder. The remaining issues on appeal are addressed in the remand that follows the decision. FINDING OF FACT For the entirety of the appeal period, the Veteran's anxiety disorder has been manifested by disturbances of motivation and mood, social isolation, restricted affect, and difficulty in establishing and maintaining effective relationships that approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating of 50 percent for anxiety disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.22, 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision on the claim decided herein has been accomplished. In this respect, through an October 2006 notice letter, the Veteran received notice of the information and evidence needed to substantiate the claim decided herein. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the October 2006 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned October 2006 notice letter. In addition, the Veteran was provided notice regarding an award of an effective date and rating criteria in the October 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board does not now have such issues before it. Consequently, a remand for additional notification on these questions is not necessary. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. The Veteran underwent VA examination in November 2006, July 2008, and June 2012; reports of those examinations are of record. In that connection, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and document that the examiners conducted full psychological examination of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim decided herein has been met. 38 C.F.R. § 3.159(c)(4). In addition, records of the Veteran's private and VA medical treatment have been associated with the file, as have his service treatment records. The Veteran has further been given the opportunity to submit evidence, and he and his representative have provided written argument in support of his claim. The Veteran also testified before a Decision Review Officer at the RO in March 2008. Otherwise, neither the Veteran nor his representative has identified, and the record does not indicate, existing records pertinent to the claim decided herein that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The Court has held that consideration of the appropriateness of a staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In the May 2007 rating decision, the Veteran's anxiety disorder was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). Under the General Rating Formula For Mental Disorders, to include anxiety disorder, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2012). Relevant medical evidence of record consists of VA examinations provided to the Veteran in November 2006, July 2008, and June 2012, as well as records of ongoing treatment from VA treatment providers and testimony from the Veteran before a Decision Review Officer at a hearing in March 2008. Report of the November 2006 examination noted that the Veteran complained of feeling sad and depressed, with increased irritability, insomnia, and a loss of interest in his daily activities. The Veteran also reported "being excessively anxious and worried about all kinds of things." He stated that he had decreased energy and ability to concentrate and often felt restless and tense. These symptoms were characterized as "moderate" and were noted to occur on a daily basis. He was noted to have normal thought processes, with no evidence of delusions or hallucinations. He denied experiencing panic attacks and suicidal ideations and was properly oriented with intact memory. The examiner noted that the Veteran's mood was "anxious and depressed," with a restricted affect. The examiner assigned a diagnosis of generalized anxiety disorder with a Global Assessment of Functioning (GAF) score of 60. Report of the July 2008 VA examination reflects that the Veteran again complained of experiencing a "sad mood" as well as decreased energy and interest and feelings of hopelessness and helplessness. The Veteran also complained of social isolation as well as problems sleeping and daytime anxiety, restlessness, and "feelings of impending doom." He rated his own symptoms as "severe" and reported that he experienced them every day. He was noted to display an anxious and depressed mood, with pressured speech and restless psychomotor activity. He denied experiencing panic attacks, hallucinations, or delusions, as well as suicidal or homicidal thoughts. He reported that he dried his hands "many times to take the blood off from the Vietnam War" but otherwise denied any obsessive or ritualistic behavior. His immediate memory was noted to be moderately impaired. He reported that he retired from work as a marine biologist due to paralysis in his legs. The examiner diagnosed him with depressive disorder, generalized anxiety disorder, and nicotine dependence, and assigned a GAF score of 65. She specifically found the Veteran to display reduced reliability and productivity due to his psychological symptoms, in particular his sad mood, lack of energy and interest, and his feeling of hopelessness. The examiner found these symptoms to cause reduced employment reliability and productivity, as well as moderate difficulties with household chores. The Veteran again underwent VA examination in June 2012. At that time, the Veteran reported feeling hopeless and lonely and experiencing a lack of motivation. He was noted to have a constricted affect with a dysphoric mood but was oriented, with unremarkable thought process and content. The Veteran denied experiencing delusions or hallucinations as well as panic attacks and suicidal or homicidal thoughts. He was noted to have normal memory. He reported that he left work more than 20 years prior due to his "physical condition." The examiner diagnosed him with generalized anxiety disorder and assigned a GAF score of 60. In addition, records from the Veteran's VA treatment providers reflect that he has sought ongoing treatment for his anxiety disorder. Records of the Veteran's treatment from 2006 to the present reflect similar symptoms as those complained of at his VA examinations, with the Veteran being assigned a GAF score of 60 on multiple occasions, most recently in June 2011. However, records of the Veteran's VA psychiatric treatment also reflect that he was assigned a GAF score of 55 at March 2008 and January 2009 treatment visits and a GAF score of 50 at an April 2010 treatment visit. On those occasions, he was noted to complain of being stressed secondary to caring for his disabled brother as well as dealing with his own medical problems. At his DRO hearing in March 2008, the Veteran also complained that he spent his time "alone" and did not socialize with anyone. Upon review of the above evidence, the Board finds that, for the entirety of the appeal period, the Veteran's service-connected anxiety disorder more nearly approximates a 50 percent rating based on occupational and social impairment with reduced reliability and productivity due to restricted affect, feelings of hopelessness and helplessness, social isolation, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships. See Mauerhan, 16 Vet. App. 436. In so concluding, the Board finds particularly persuasive the Veteran's ongoing symptoms of anxiety, depression, and difficulty with concentration, as well as loss of interest in activities, isolation, and difficulty in establishing and maintaining effective relationships as recorded by his treating VA psychiatrists and VA examiners. The Board notes, as discussed above, that it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. Nonetheless, upon review of the relevant medical evidence discussed above, the Board finds that the Veteran's anxiety disorder has been manifested by symptoms akin to occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. See 38 U.S.C.A. § 5017(b); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9400. This is so for the entirety of the appeal period. Therefore, a rating of 50 percent for the Veteran's anxiety disorder is warranted. In reaching this conclusion, the Board finds particularly persuasive the Veteran's ongoing mood disturbances, problems with anger and irritability, and social isolation, as discussed above. The Board also acknowledges findings of the November 2006 VA examiner that the Veteran's symptoms were "moderate" in severity, as well as the Veteran's own characterization of his symptoms as "severe" at his July 2008 VA examination. The Board notes, however, that words such as "moderate," "marked," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just as contemplated by the requirements of the law." 38 C.F.R. § 4.6. Use of terminology such as "moderate" or "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As such, the Board finds that a disability rating of 50 percent for the Veteran's service-connected anxiety disorder is proper. The Board has also considered but does not find that the Veteran's anxiety disorder has approximated a 70 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9400, at any time during the appeal period. Here, the medical evidence does not reflect deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or an inability to establish and maintain effective relationships. The Board has also has considered but does not find that the Veteran's anxiety disorder has caused total social and occupational impairment at any time during the appeal period; thus, it does not approximate a 100 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9400. In its analysis, the Board has considered the GAF scores assigned to the Veteran in the November 2006, July 2008, and June 2012 VA examinations, as well as in records of the Veteran's ongoing treatment with his VA treatment providers and in particular the GAF scores of 50 and 55 assigned by his VA treatment provider in 2009 and 2010. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." It does not otherwise include impairment in functioning due to physical (or environmental) limitations. There is no question that the GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). Nevertheless, the GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the evaluation issue; rather, they must be considered in light of the actual symptoms of the Veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). The DSM-IV identifies scores in the ranges of 41-50 as "serious symptoms," which include suicidal ideation, severe obsessional rituals, frequent shoplifting, or any serious impairment in social, occupation, or school functioning, such as no friends or being unable to keep a job. Scores in the range of 51-60 are identified as "moderate symptoms" such as flat affect and circumstantial speech or moderate difficulty in social or occupational functioning. The Board notes here that the Veteran has not at any time displayed any suicidal or homicidal ideation or severe obsessional rituals; nor has he been noted to engage in activities such as shoplifting. Rather, he has consistently denied experiencing any suicidal or homicidal ideation, as well as any delusions or hallucinations. Nothing about the Veteran's assigned GAF scores, when considered in light of the other evidence of record-in particular the Veteran's assessed level of occupational and social impairment-leads the Board to conclude that a rating higher than the 50 percent assigned herein is warranted. In so finding, the Board reiterates that the Veteran's assigned GAF scores are not dispositive of the evaluation and must be considered in light of the actual symptoms of his disorder. In this case, the Board has found that the Veteran's symptomatology, as discussed above, is appropriately compensated by the 50 percent rating assigned herein. The above determinations are based on consideration of the applicable provisions of VA's rating schedule. The Board also finds that at no time has the disorder under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected anxiety disorder, without regard to any other disabilities, has otherwise rendered impractical the application of the regular schedular standards. To the contrary, the Veteran specifically stated on multiple occasions, including at his July 2008 and June 2012 VA examinations, that he left work due to physical problems with his legs. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Furthermore, it bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claim that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are those specifically contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). As a result, the Board concludes that a remand for referral of the rating issues to the VA Central Office for consideration of extra-schedular evaluation is not warranted. For all the foregoing reasons, the Board finds that the Veteran's service-connected anxiety disorder warrants a disability rating of 50 percent, but no higher. This is so for the entirety of the appeal period. 38 C.F.R. §§ 4.3, 4.7, 4.22, 4.130, Diagnostic Code 9400 (2012). In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for ratings higher than those assigned, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a disability rating of 50 percent for anxiety disorder is granted. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for entitlement to service connection for nicotine dependence as secondary to his service-connected disabilities and his claim for entitlement to a TDIU. The Court has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated that, if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. As to the Veteran's claim for service connection for nicotine dependence, the Board points out as an initial matter that for claims filed after June 9, 1998, such as the Veteran's claim, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. That is not the issue in this case. The Veteran contends that one of his service-connected disabilities, most likely his anxiety disorder, caused his post-service use of tobacco. Therefore, this not an issue of a claim for service connection based upon tobacco use in service. Further, a July 2008 VA psychiatric examination suggests that the Veteran's tobacco use may be secondary to his service-connected anxiety disorder. VA's General Counsel has held that the legal bar to service connection for a disability attributable to tobacco use does not bar a finding of secondary service connection for a disability related to the Veteran's use of tobacco products after service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the Veteran's use of tobacco products during service. See VAOPGCPREC 6-2003 (October 28, 2003). As such, the Board concluded that VA psychiatric examination should be undertaken to determine whether the Veteran's nicotine dependence is secondary to, or aggravated by, his service connected disabilities. In that connection, the Board notes that in April 2010, and again in April 2012, the Board remanded the claim so that a VA examination and medical opinion could be obtained. In accordance with the Board's remand directives, the AOJ scheduled the Veteran for a VA examination in June 2012 to address the nature and etiology of the nicotine dependence for which the Veteran was seeking service connection. At that time, the Veteran was given a VA examination concerning his claimed nicotine dependence disorder, which the examiner found less likely than not related to service or to service-connected disabilities. However, when providing a rationale for this opinion, the examiner merely pointed out that the Veteran began smoking two years after his separation from service and "the events that led to his service connected conditions." This statement was not explained. She further quoted statistics from medical literature but failed to relate the statistics to the Veteran's specific circumstances. In addition, the examiner noted that the Veteran had been rated as having a "high dependence" on nicotine in October 2005 but as having a "very low" dependence on nicotine in September 2008. However, the examiner failed to explain why this decrease in dependence level indicated that the Veteran's nicotine dependence did not initially develop secondary to service-connected disabilities. The Board finds these statements to be conclusory and not explained in the context of the record or the contentions of the Veteran. Thus, the June 2012 VA examination is inadequate, and remand is required. Once VA undertakes to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In this case, the Board notes that-despite the instructions in the April 2010 and April 2012 remands-the June 2012 VA examiner failed to adequately respond to the specific questions posed by the Board concerning the etiological relationship of any diagnosed nicotine dependence disorder to the Veteran's service-connected disabilities. This is so despite specific instructions to the AOJ in the April 2012 remand regarding the questions to be answered by the VA examiner. Because the examinations present in the record do not fully provide answers to these questions, the VA medical opinions obtained to date are inadequate. See 38 C.F.R. § 4.2 (2012) (providing that where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, remand is again required. Thus, the Board finds that another VA examination is needed regarding the Veteran's claim for service connection for nicotine dependence as secondary to service-connected disabilities. Such examination must include a medical opinion addressing the nature and etiology of any diagnosed nicotine dependence disorder found to be present. The examiner must conduct a physical examination of the Veteran, provide a clear diagnosis for his claimed nicotine dependence disorder and specifically discuss whether any diagnosed nicotine dependence disorder has been caused by or aggravated by the Veteran's service-connected disabilities-anxiety disorder, neurodermatitis, and hypertrophic tonsils. Thus, under these circumstances, the Veteran must be scheduled to undergo examination at an appropriate VA medical facility. See 38 U.S.C.A. § 5103A. Concerning the Veteran's claim for entitlement to a TDIU, The Board acknowledges that under applicable criteria, TDIU may be awarded where the schedular rating is less than total and when it is determined that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under § 4.16(a), if there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more disabilities, at least one of those disabilities must be rated at 40 percent or more, and the total combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident, disabilities of one or both of the upper extremities or of the lower extremities, disabilities affecting a single body system, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war may be considered as one disability in applying the provisions of § 4.16(a). The Board notes that the Veteran is service connected for anxiety disorder, herein rated as 50 percent disabling; neurodermatitis, rated as 30 percent disabling; and hypertrophic tonsils, rated as 10 percent disabling. The current combined evaluation for the Veteran's service-connected disabilities is 70 percent. See 38 C.F.R. § 4.25 (2012). The United States Court of Appeals for Veterans Claims (Court) has stated that in order for a Veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In adjudicating a claim for TDIU, the Board may not reject the Veteran's claim without producing evidence, as distinguished from mere conjecture. See Friscia v. Brown, 7 Vet. App. 294 (1995). In Friscia, the Court stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. Here, the Board notes that the relevant evidence includes, most recently, a VA psychiatric examination conducted in June 2012 and a VA general medical examination conducted in January 2013. At the psychiatric examination, the Veteran reported experiencing feelings of hopelessness, loneliness, and a lack of motivation. He was noted to be oriented and cooperative, with intact attention and unremarkable thought process and content and no delusions or hallucinations. The examiner found the Veteran to experience no problems with his activities of daily living and to be mentally competent. The examiner noted that the Veteran reported having retired 20 years earlier due to his "physical condition." He found further that the Veteran's symptoms are adequately controlled by medication and present no obstacle to his ability to maintain employment. The Veteran also underwent general medical examination in January 2013; at that time, the internist who conducted the examination concluded that the Veteran's neurodermatitis and hypertrophic tonsils, when considered separately, each had no functional effect on his ability to obtain and maintain gainful employment. However, neither the psychiatrist who examined the Veteran in June 2012 nor the internist who examined the Veteran in January 2013 offered an opinion as to whether the Veteran's anxiety disorder, neurodermatitis, and hypertrophic tonsils, when considered together, precluded the Veteran from employment. Once VA undertakes to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In this case, although the June 2012 and January 2013 VA examiners conducted evaluation of the Veteran's ability to work as impacted by each of his service-connected disabilities separately, the Board notes that no VA examiner has made a determination as to whether the Veteran's service-connected disabilities, when considered together, render him unable to seek or maintain gainful employment. That is, no adequate VA examination has been conducted to assess the Veteran's current employability, based on both a thorough assessment of all his service-connected disabilities and his educational and occupational history and experience. Because no VA examiner has provided a medical opinion concerning the Veteran's employability as impacted by all of his service-connected disabilities considered together, a remand is required. See 38 C.F.R. § 4.2 (2012) (providing that where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Thus, the Veteran must be scheduled for a single VA examination by a psychiatrist, and the examiner instructed to conduct both physical and psychiatric examination of the Veteran with review of the medical evidence and provide a medical opinion addressing the question of whether the Veteran's service-connected disabilities, when considered together and without consideration of any non-service-connected disabilities, combine to make him unemployable. See 38 U.S.C.A. § 5103A(d); Friscia v. Brown, 7 Vet. App. 294 (1995). Such opinion must be based upon consideration of the Veteran's current medical condition as well as his documented history and assertions, to include employment history and education, and medical evidence associated with the record. 38 U.S.C.A. § 5103A. In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran must again be scheduled for VA examination to determine the etiology of any currently diagnosed nicotine dependence disorder he currently experiences. He must be notified that failure to report to the scheduled examination, without good cause, could result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2012). The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. The examiner must provide a clear and specific diagnosis for any nicotine dependence disorder that the Veteran currently experiences. For any such disability diagnosed, the examiner must indicate whether it is at least as likely as not (a 50% or higher degree of probability) that the disorder was caused by or has been chronically worsened by the Veteran's service-connected disabilities, which include anxiety disorder, neurodermatitis, and hypertrophic tonsils. The examiner must set forth all examination findings, along with the complete rationale for all opinions expressed. 2. The Veteran must then be afforded a VA examination by a psychiatrist. The entire claims file, to include a complete copy of this remand, must be made available to the examiner designated to examine the Veteran. The examiner must consider the current severity of all of the Veteran's service-connected disabilities, both physical (neurodermatitis and hypertrophic tonsils) and psychiatric (anxiety disorder). Report of the examination must include discussion of the Veteran's documented medical history and assertions. In addition, the examiner must elicit from the Veteran and record for evaluation purposes a full work and educational history. Following the above-requested review of the claims file, the examiner must offer an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that all of the Veteran's service-connected disorders-anxiety disorder, neurodermatitis, and hypertrophic tonsils-combine to preclude substantially gainful employment that is consistent with the Veteran's education and occupational experience. The examiner must provide a thorough explanation for the opinion, addressing both the Veteran's physical and psychiatric service-connected disorders in the context of the discussion of employability. 3. The agency of original jurisdiction must ensure that the examination reports comply with this remand and the questions presented in the examination request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, the claims remaining on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board. The Veteran has the right to submit additional evidence and argument on any 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs