Citation Nr: 1328208 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-46 580A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to May 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran claims entitlement to a total disability rating based on individual unemployability (TDIU) contending that the combination of his service-connected disabilities, particularly his anxiety disorder, render him unemployable. Service connection is currently in effect for urinary incontinence, rated as 40 percent disabling prior to March 9, 2010, and 60 percent disabling from March 9, 2010; anxiety disorder, rated as 30 percent disabling; a left ankle disability, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; spinal stenosis, rated as 10 percent disabling; and a right knee disability, a right ankle disability, right nasal bone fracture residuals, sinusitis, hemorrhoids, left inguinal hernia, scar on the bridge of nose, and erectile dysfunction, all assigned a noncompensable disability rating. The combined disability rating for his service-connected disorders was 70 percent from November 30, 2009, and 80 percent from March 9, 2010. The Board remanded this claim in June 2012 to obtain a VA medical opinion to determine if the Veteran was unemployable due to the combined effect of all his service-connected disabilities. At that time, the evidence of record contained a VA examination dated in February 2011 and a psychiatric examination dated in August 2010, that considered unemployability as to each individual disability, but not whether the combined effect of all disabilities rendered the Veteran unable to retain or maintain substantially gainful employment. For these reasons, the Board found the examinations of record inadequate and remanded for a new VA medical opinion. On remand, the Veteran was afforded VA examinations in July 2012 and January 2013, where the various examiners essentially repeated the same error. The July 2012 VA examiner rendered individual opinions regarding unemployability as to each of the disabilities, other than tinnitus and anxiety. Not only did the VA examiner not consider tinnitus and anxiety, but the examiner also did not render an opinion regarding the Veteran's employability in light of the combined effect of all his service-connected disabilities as directed by the Board's remand. The Veteran's service-connected tinnitus and service-connected anxiety disorder were evaluated by an audiologist and psychologist, respectively, in July 2012. With regard to anxiety, the July 2012 VA psychologist opined as follows: The Veteran is more likely than not unemployable primarily due to his retirement age accompanied with his medical conditions. His psychiatric condition may play a small role in contributing to his difficulties in the work force in obtaining and maintaining employment consistent with his education and occupational experiences, but from his occupational history, this is quite minimal. In contrast, the Board's prior remand instructions specifically directed the examiners to consider the question of unemployability consistent with his education and occupational experience, but without consideration of his nonservice-connected disabilities, or age. The July 2012 VA examiner opined that the Veteran was currently unemployable. It is entirely unclear, however, whether his unemployability can solely be attributed to the aggregate affect of his service-connected disabilities, as opposed to nonservice-related factors, such as age. The Board finds the VA examinations obtained are not compliant with the Board's prior remand directives and inadequate to decide the claim. Accordingly, an additional VA examination must be conducted. See Stegall v. West, 11 Vet. App. 268 (1998) (holding the Board is obligated by law to ensure that the RO complies with its directives; 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). The VA must take this opportunity to obtain current VA outpatient treatment records from May 2012 to the present. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for the disorders at issue. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain VA outpatient treatment records from May 2012 to the present from the VA Medical Center in St. Cloud, Minnesota. All attempts to secure this evidence must be documented in the claims file by the RO and VA facilities must provide a negative response if no records are available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded one VA examination to determine the combined effects of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment, consistent with his education and occupational experience. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, either alone or in combination, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The VA examination report obtained must be reviewed by the RO to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).