Citation Nr: 1327886 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 07-24 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent disability rating, effective October 25, 2005. In June 2009 the Veteran testified during a Board hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of the hearing is of record. In September 2009, the Board remanded claims for a higher initial rating for PTSD and for a TDIU to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In May 2012, the Board granted a 70 percent initial rating for PTSD, but again remanded the claim for a TDIU for additional development. After completing additional development, the AMC continued to deny the claim (as reflected in an April 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board. The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant evidence. In the May 2012 decision and remand, the Board noted that issues of entitlement to service connection for ankle and shoulder disabilities had been raised by the record via the Veteran's testimony during his June 2009 Board hearing. Because these issues had not been adjudicated by the Agency of Original Jurisdiction (AOJ), they were referred to the AOJ for appropriate action. There is no indication that these issues raised in June 2009 have yet been adjudicated. Additionally, the Board notes that claims for service connection for right and left ankle disabilities were previously denied in an unappealed March 2004 rating decision. In this March 2004 rating decision, the RO also denied service connection for hearing loss. A June 2012 VA examination report appears to raise the matter of whether new and material evidence has been submitted sufficient to reopen a claim for service connection for hearing loss. The issue of entitlement to service connection for shoulder disabilities, as well as requests to reopen claims for service connection for ankle disabilities and hearing loss, have been raised by the record, but have not been adjudicated by the AOJ. The Board does not have jurisdiction over these matters and they are referred to the AOJ for appropriate action. 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 Review of the record reveals that further action on the claim for a TDIU is necessary. The Veteran was afforded VA spine, audiological, and posttraumatic stress disorder (PTSD) examinations to evaluate his claim for a TDIU in June 2012. The VA spine examiner stated that she had reviewed the Veteran's claims file as well as his records in the Computerized Patient Record System (CPRS) and the Veterans Health Information Systems and Technology Architecture (VISTA). She noted that the Veteran was currently receiving treatment for his back disability at the Marquette Community Based Outpatient Clinic (CBOC). The VA PTSD examiner also noted that he had reviewed the Veteran's claims file and the CPRS. He commented that the Veteran saw VA providers for individual counseling twice a month and for pharmacotherapy every four to six months. The examiner discussed the Veteran's most recent progress note, from earlier that month. The most recent VA treatment records currently associated with the claims file are dated in January 2010. The June 2012 VA examination reports indicate that more recent VA treatment records, which are potentially pertinent to the claim on appeal, are available. These records should be obtained on remand. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Further, the claims file and Virtual VA e-folder include a July 2010 rating decision in which the RO continued a 20 percent rating for degenerative joint disease with degenerative disc disease at L5-S1 and granted service connection and assigned an initial 10 percent rating for radiculopathy of the right lower extremity. The RO also deferred claims for service connection for a traumatic brain injury, headaches secondary to a traumatic brain injury, and a neck condition. The evidence considered in the July 2010 rating decision included a statement from the Veteran received June 23, 2009, treatment records from the Iron Mountain VA Medical Center (VAMC) from May 2009 to May 2010, and a July 2010 VA examination report. The Veteran's Virtual VA e-folder includes a May 2011 rating decision in which the RO denied service connection for traumatic brain injury and headaches secondary to a traumatic brain injury, and found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a neck condition. The evidence considered in that rating decision included treatment records from the Iron Mountain VAMC dated from May 2008 through November 2010 and a November 2010 VA examination report. While the July 2010 and May 2011 rating decisions are available for the Board's review in the Virtual VA e-folder, all of the evidence considered in those rating decisions, including the June 2009 statement from the Veteran, VA treatment records dated after January 2010, and the July and November 2010 VA examination reports, are not presently available for the Board's review. These records should also be obtained and associated with the claims file or Virtual VA e-folder. Further, as noted in the introduction, the issues of entitlement to service connection for shoulder disabilities, as well as requests to reopen claims for service connection for ankle disabilities and hearing loss, have been raised by the record and are being referred to the AOJ for appropriate action. Given that the outcome of each of these claims could affect the claim for a TDIU, the claim for a TDIU is inextricably intertwined with these issues and the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Therefore, appellate review of the claim for TDIU must be deferred until the above-described claims, which have been raised by the record, are adjudicated. Finally, the Board remanded the claim in May 2012, in part, to afford the Veteran a VA examination to obtain an opinion regarding whether the Veteran's service-connected disabilities combined to render him unemployable. The examiner was instructed to opine as to whether the Veteran's service-connected PTSD, alone, rendered him unable to secure or follow a substantially gainful occupation. He or she was also to opine as to whether the Veteran's degenerative joint disease with degenerative disc disease at L5-S1, radiculopathy of the right lower extremity, tinnitus, and PTSD combined to render him unable to secure or follow a substantially gainful occupation. As indicated above, the Veteran was afforded VA spine, audiological, and PTSD examinations in June 2012. While these VA examination reports include opinions regarding the impact of the Veteran's service-connected disabilities on his employability, it is not entirely clear that any examiner considered, in the aggregate, whether all of the Veteran's service-connected disabilities combined to render him unable to secure or follow a substantially gainful occupation. In this regard, while the VA spine examiner provided an opinion regarding the impact of the Veteran's "service connected conditions" on his employability, in providing a rationale for this opinion, she noted that the Veteran had service-connected diagnoses of degenerative disease of the lumbar spine and radiculopathy. Therefore, it appears her opinion pertained only to these service-connected conditions. Further, while the VA PTSD examiner opined that there was nothing to indicate that the Veteran's current PTSD symptoms, in conjunction with his other medical conditions, effected his employability, the examiner went on to provide a rationale which addressed the impact of the Veteran's service-connected PTSD on his employability (as opposed to the combined effect of his service-connected disabilities). Additionally, the VA PTSD examiner's opinion appears to conflict with the VA spine examiner's opinion that the Veteran's degenerative disease of the lumbar spine and radiculopathy affected or imposed work restrictions in all fields of labor that are medium/heavy manual labor with prolonged, standing, walking, or using stairs. Because the claim is being remanded for other development, the Board finds that a supplemental medical opinion, which clearly addresses whether the Veteran's service-connected disabilities, considered together, render him unable to obtain and retain substantially gainful employment consistent with his education and occupational experience, and is supported by a clearly-stated rationale, should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Conduct all necessary notice, development and adjudication of the claim for service connection for shoulder disabilities, as well as the requests to reopen claims for service connection for ankle disabilities and hearing loss. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any of his service-connected disabilities. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for: (1) treatment records from the Iron Mountain VAMC (to include the Marquette CBOC), dated since January 2010, to include records included in CPRS and/or VISTA; and (2) records relied on in the July 2010 and May 2011 rating decisions, to include a June 2009 statement from the Veteran and July and November 2010 VA examination reports. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 3. After the above development has been completed and all available records have been associated with the claims file or Virtual VA e-folder, forward the claims file to the examiner that conducted the June 2012 VA spine or PTSD examination, if available, for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities (that is, PTSD, degenerative joint disease with degenerative disc disease at L5-S1, radiculopathy of the right and left lower extremities, tinnitus, and any additional disabilities for which service connection is granted), considered together (and also considering the effects of medication used to treat these service-connected disabilities), have combined to render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience at any time from March 2008 to the present. As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: * The record reflects that the Veteran has not worked since March 2008. He worked as a bartender and bouncer prior to being hired as a state corrections officer, where he worked for 25 years. After retiring from work as a corrections officer, he worked for Walmart as a secret shopper/in security for three years, followed by selling cell phones at Walmart for three years. * The record reflects that the Veteran has a general associate's degree and studied psychology and social work in college, but is two classes short of a degree. * During a January 2006 VA PTSD examination, the Veteran reported that while working in the correctional system he preferred to work in the segregation unit because it was "very structured and not crowded." He stated that, since retiring, he had worked as a security guard at Walmart until he was fired "for avoiding crowds in the store and not catching enough shoplifters" but was transferred to the cell phone sales desk. He described the cell phone sales job as "more comfortable" because he "had the booth around [himself]" and could "take breaks and walk away when he need[ed] to get away from the crowds, which had been distressful for him." He commented that, through his emotional numbing, he had been able to maintain his work. * In a February 2007 letter, the Veteran's private counselor, D.A.M., commented that the Veteran had been receiving treatment for chronic PTSD and major depression and was also dealing with significant physical disabilities and chronic pain in his legs and back from military-related incidents. He opined that, together with his mental health condition and advancing age, the Veteran was "not able to perform virtually any 'normal' civilian job at this time." D.A.M. noted that the Veteran had asked that the counselor include a statement about his previous work as a corrections officer being possible in part because of the military-like structure and hierarchy of the corrections system. The counselor noted that the Veteran was very unlikely to find a similarly supportive structure in any other profession at this point in his life. * In a September 2007 letter, the Veteran's co-worker wrote that the Veteran "sometimes gets uptight when a cellphone sale doesn't go smoothly" and, when their area of the store got busy, the Veteran "tends to get panicky and usually has to take a break." He added that "it sometimes takes [the Veteran] longer to grasp new procedures, but once he does, he does fine." In an October 2007 letter, another co-worker stated that the fact that Walmart was a busy place put the Veteran "more on edge than the rest of us." He stated that the Veteran repeatedly had to be shown how to use a few pieces of computer equipment and added that the "not so complicated tasks" seemed to leave the Veteran "flustered and panicky" resulting in the Veteran having to "clear his head and go for a walk." * A May 2008 VA treatment record indicates that the Veteran was on medical leave from his employment at Walmart. He stated, "I don't know if I will go back. It has been stressful to work at Walmart." * During VA mental health treatment in July 2008, the Veteran reported stress with his job and stated that he was not sure if he would return after his knee healed from a recent knee replacement. * A December 2009 VA mental health treatment record reflects that the Veteran reported that he continued to stay fairly active and had been offered his old job back working retail at Walmart. He "said he was not interested as he is enjoying retirement." * A March 2010 VA PTSD examination report reflects that the Veteran reported retiring from his work at Walmart at age 60 following knee replacement surgery. He stated that he had been having "conflict with peers and customers, and did not believe Walmart would rehire him." He added that he did not believe he could work due to chronic pain following his knee replacement surgery, including pain in his neck, back, hips, knees, and ankles. He further stated the he believed his hearing loss, tinnitus, and frequent urination would interfere with or preclude employment. The examiner opined that the Veteran's current symptoms did not preclude working, but, rather, according to his records, he had declined to return to work in December 2009 because he was enjoying retirement. The examiner noted that the Veteran would likely have intermittent difficulty in the work setting when his concentration diminished with anxiety; however, he subsequently stated that his opinion was based only on the impact of the Veteran's anxiety condition (PTSD) and concurrent and related aspects of depression would likely impact functioning. * The Veteran underwent a VA spine examination in June 2012. The examiner opined that the Veteran's thoracolumbar spine condition impacted his ability to work in that he was limited to sitting for less than two hours and had to get up and walk around every 10 to 15 minutes. He was limited to lifting less than 20 pounds and standing for 30 minutes. The examiner opined that the Veteran's service-connected conditions did not affect or impose work restrictions in all fields of labor that are sedentary/light manual labor without prolonged standing, walking, or using stairs. He added that his conditions did affect or impose work restrictions in all fields of labor that are medium/heavy manual labor with prolonged, standing, walking, or using stairs. He opined that the Veteran's education and skills made him employable. She commented that the Veteran's medication might affect his employment. In providing a rationale for her opinion, the examiner noted that the Veteran was service-connected for degenerative disease of the lumbar spine and radiculopathy and commented that these diagnoses limited his functional abilities. While his past work experience and training was related to fields requiring physical activity, she opined that he should be able to do paperwork, desk jobs, and work on computers if allowed to take frequent breaks and get up and walk around as prolonged sitting impacted his back condition. She noted that the Veteran also had service-connected PTSD and tinnitus, and audiological and mental health VA examinations had been requested. * Following VA audiological examination on the same day as the VA spine examination, the examiner opined that the Veteran's hearing loss and tinnitus disabilities did not impede his working ability in gainful employment settings. In providing a rationale for this opinion, he noted that most occupations do not set physical requirements for hearing. He stated that the Veteran's hearing loss and tinnitus would cause significant problems working in specific vocations and work environments, such as noisy environments and environments which required non face-to-face communications, or jobs which required a great deal of attention to high-pitched sounds. The examiner stated that he could not opine regarding the Veteran's cognitive limitations imposed by his hearing loss and tinnitus or on his medications and their possible impact on hearing loss and tinnitus in regards to employability, as audiologists do not comment on such matters. * Following VA PTSD examination later in June 2012, the examiner opined that the Veteran's current PTSD symptoms, alone, did not render him unemployable and there was nothing to indicate that his current PTSD symptoms, in conjunction with his other medical conditions, affected his employability. In providing a rationale for this opinion, the examiner noted that the Veteran did not complain of any difficulties in performing his activities of daily living and reported an increased level of activity in a number of areas. There was also no indication of gross impairment in thought processes or communication, persistent delusions or hallucinations, or the Veteran being at risk of causing harm to himself or others. Based on this, the examiner opined that there was no indication of total occupational and social impairment. The examiner is advised that, in rendering the requested opinion, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner should specifically consider and address the February 2007 letter from D.A.M. as well as the opinions contained in the March 2010 and June 2012 VA examination reports. A complete rationale for all opinions expressed should be provided. If further examination of the Veteran is deemed necessary, arrange for the Veteran to undergo VA examination to obtain the above-noted opinion. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter that 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). _________________________________________________ SARAH B. RICHMOND Acting 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).