Citation Nr: 1329618 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 11-26 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1952 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, that denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In June 2012, the Veteran presented sworn testimony during a Travel Board hearing in Sioux Falls, South Dakota, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In a July 2012 decision, the Board denied entitlement to TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court issued an order granting a November 2012 joint motion for remand (JMR). The appeal was returned to the Board for action consistent with the November 2012 JMR and Court Order. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota. VA will notify the Veteran if further action on his part is required. REMAND In July 2012, the Board reopened and remanded the Veteran's claim for service connection for a traumatic brain injury (TBI). The Veteran has previously claimed that he is unemployable, at least in part, due to a TBI. The Parties to the JMR determined that the development and/or a grant of service connection for a TBI could affect the Veteran's claim for TDIU, and that the issues were therefore inextricably intertwined. The claim for service connection for a TBI must be developed and readjudicated prior to the readjudication of the TDIU claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The Board notes that the Veteran, through his attorney, submitted a March 2013 report that addressed the question of whether he had been rendered unemployable due to his service connected disabilities, which are presently limited to an anxiety disorder, rated as 50 percent disabling, and recurrent epididymitis, rated as 10 percent disabling. The private vocational consultant present a positive opinion, i.e., that the Veteran was unable to secure and follow substantially gainful employment due to his service connected disabilities. Such was in direct contradiction to opinions developed by VA in 2011. There are also inconsistencies contained in that opinion. An additional opinion would thereby be helpful. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of Veteran's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The Veteran's updated treatment records should also be obtained. The Board emphasizes any records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and request that he identify any and all VA and non-VA health care providers that have treated him for his service connected anxiety disorder and/or recurrent epididymitis since January 2011. After securing the necessary authorization, obtain such records. Any negative development should be included in the claims file. 2. Following the development and readjudication of the claim for service connection for a TBI in compliance with the July 2012 Board remand directives, the Veteran should be afforded an examination to determine whether the Veteran's service-connected disabilities have prevented him from engaging in all forms of substantially gainful employment, consistent with his education and occupational experience. The claims folder must be made available to the examiner for review and the report must indicate whether such review was accomplished. The examiner is requested to render an opinion on the following: Without regard to the Veteran's age or the impact of any nonservice-connected disabilities, but with regard to his education level, it is at least as likely as not that the Veteran's service-connected anxiety disorder and recurrent epididymitis (and residuals of a TBI, if such has become service connected) alone have precluded him from engaging in substantially-gainful employment, as opposed to not-for- profit volunteer work. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should be requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service- connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service- connected disabilities alone are of such severity to result in unemployability. If warranted, the examiner should reconcile his or her findings with that of the March 2013 opinion from M. LaRain. A rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing any additional necessary development, if appropriate, the RO/AMC should re-adjudicate the issue of entitlement to a TDIU. If the disposition is unfavorable, the RO should furnish the Veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).