Citation Nr: 1328015 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-49 592 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2009 rating decision in which the RO denied entitlement to an increased rating for the Veteran's service-connected disabilities, as well as entitlement to TDIU. In June 2009, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in November 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in December 2009. For reasons expressed below, the remaining claim on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in a June 2011 statement, the Veteran raised the issue of entitlement to service connection for carpal tunnel syndrome as secondary to service-connected diabetes mellitus. It does not appear that the secondary service connection claim for carpal tunnel syndrome has yet been addressed by the RO. As such, this matter is not properly before the Board, and is thus referred to the RO for appropriate action. REMAND The Veteran has asserted that he is unable to work as a result of his service-connected disabilities. In this case, service connection is in effect for adjustment reaction with depression and anxiety (rated as 70 percent disabling), diabetes mellitus (rated as 20 percent disabling), tinnitus (rated as 10 percent disabling), peripheral neuropathy affecting the bilateral lower extremities (separately rated 10 percent disabling) and hemorrhoids, hypertension, erectile dysfunction, and cataracts (rated as noncompensable). In May 2011, the Board remanded this claim for additional evidentiary development, noting that the evidentiary record did not contain an opinion that addressed whether the Veteran's service-connected disabilities, in concert, render him unemployable. In the May 2011 Remand, the Board directed the RO, via the AMC, to schedule the Veteran for a VA examination to obtain a medical opinion regarding whether it is as likely as not that the Veteran's service-connected disabilities, either individually or in concert, render him unable to obtain or retain substantially gainful employment. On remand, the RO, via the AMC, scheduled the Veteran for several VA examinations, including a general medical, audio, eye, and mental disorders examination. See VA examination reports dated May, June, and September 2011. The medical professionals who conducted the examinations noted that several of the Veteran's service-connected disabilities did not result in a functional impairment, including service-connected cataracts, peripheral neuropathy, hypertension, hemorrhoids, and erectile dysfunction. Nevertheless, the evidence shows that the Veteran's service-connected adjustment disorder resulted in 60 to 70 percent of the Veteran's unemployability due to panic attacks, agitation, and frustration. See May 2011 VA Mental Disorders examination report. The evidence also shows that the Veteran's service-connected diabetes mellitus results in a functional impairment due to insulin being restricted in commercial driving. See June 2011 VA General Medical examination report. The physicians who conducted the VA mental disorders and general medical examinations were clear in noting that the Veteran's adjustment disorder and diabetes mellitus do not individually prevent the Veteran from securing and maintaining substantially gainful employment; however, none of the medical professionals who evaluated the Veteran provided the requested opinion with respect to whether the Veteran's service-connected disabilities, in concert, render him unable to obtain or retain substantially gainful employment. It is clear that the RO attempted to comply with the Board's directives in the May 2011 Remand, as it arranged for the Veteran undergo VA examinations and requested that appropriate medical opinions be provided. However, the primary purpose of the previous remand has not been achieved. In this regard, the Board emphasizes that the purpose of the previous remand was to obtain a single medical opinion that addresses whether it is as likely as not that the physical and mental impairment caused by the Veteran's service-connected disabilities render him unable to obtain or retain substantially gainful employment, either individually or in concert. Despite the action taken by the RO after the May 2011 Remand, a single medical opinion that addresses whether the Veteran's service-connected disabilities collectively affect his employability was not obtained, which leaves the evidentiary record in the same position as it was at the time of the May 2011 remand. Therefore, the Board finds that the directives of the May 2011 Remand have not been substantially complied with, thereby necessitating another remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (compliance by the Board or the RO with remand instructions is neither optional nor discretionary). Accordingly, on remand, the RO, via the AMC, should arrange for an appropriate physician, preferably a psychiatrist or any other medical doctor who can render an opinion on the functional impairment caused by the Veteran's physical and mental service-connected disabilities, to review the record and provide another opinion with respect to whether the Veteran's service-connected disabilities, in concert, render him unable to secure and maintain substantially gainful employment. While this matter is on remand, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining 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). 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 remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The letter should 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, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for a psychiatrist or other appropriate physician (M.D.), at a VA medical facility, for evaluation and opinion addressing the impact of his service-connected physical and mental disabilities on his employability. 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 review of the record, the physician should describe the functional effects of each service-connected disability on the Veteran's ability to perform the mental and/or physical acts required for substantially-gainful employment. Then physician should render an opinion, based upon review of the record and 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 discuss the pertinent medical and other evidence of record, including the prior VA examination reports which reflect evaluation each service-connected disability. The physician should set forth all findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. 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). 6. 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. 7. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC (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 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 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).