Citation Nr: 1329773 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-04 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to total rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. The Veteran also had a second period of active duty from October 1974 to May 1976; however, in an Administrative Decision dated in December 1977, the RO concluded that the Veteran's discharge in May 1976 was a discharge not under conditions other than dishonorable, and was therefore a bar to VA benefits for that period of service. 38 C.F.R. § 3.12 (2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to TDIU. The Board denied the claim in March 2010, and the Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2011 Order, the Court vacated the March 2010 Board decision and remanded the matter to the Board for development consistent with the parties' March 2011 Joint Motion for Remand (Joint Motion). In November 2011, the Board remanded this matter for additional development, which was completed. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Reason for remand: To obtain an opinion from a qualified examiner whether it is at least as likely as not that the Veteran's service-connected disabilities in combination preclude his ability to obtain or maintain substantially gainful employment. Per the March 2011 Joint Motion, the Board remanded this matter in November 2011 for the scheduling of a VA Audio examination in which the examiner would discuss the effect of the Veteran's service-connected bilateral hearing loss and tinnitus on his occupational functioning and daily activities. In addition, the examiner was to specifically comment on the effect that the service-connected bilateral hearing loss and tinnitus would have on the Veteran's ability to perform physical and sedentary types of employment. The Audio examination was conducted in February 2013, and in the report, the examiner checked a box indicating that the Veteran's hearing loss does "impact ordinary conditions of daily life, including the ability to work" and indicated that the Veteran described the impact as "[d]ifficulty with conversations." The examiner then concluded that "[t]he veteran's hearing loss should not prevent him from obtaining and performing any physical or sedentary employment for which he was otherwise qualified." The examiner then noted, "He is able to carry on conversations in a quiet environment without difficulty." The Board concludes that the examiner's statement that the Veteran "is able to carry on conversations in a quiet environment" is an inadequate explanation for the conclusion that the hearing loss "should not prevent him from obtaining and performing any physical or sedentary employment" because the examiner did not specifically address the Veteran's subjective complaints regarding the impact of his hearing loss on employment. For example, a July 2005 VA treatment record shows the Veteran reported losing his job as a bellman due to a misunderstanding with his supervisor when his supervisor assumed that the Veteran was ignoring him but the Veteran claimed that he was unable to hear him. Additionally, although the Veteran denied having tinnitus at the time of the February 2013 examination, he has reported symptomatic tinnitus during the pendency of this claim, and therefore the Board finds that the examiner must provide an opinion as to whether his tinnitus has effected his ability to obtain and maintain gainful employment at any time during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim). Second, the opinion provided in the August 2007 VA PTSD examination report is inadequate because the examiner did not have the claims file for review. Once VA undertakes the effort to provide an examination and opinion for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). An examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one. Stefl, 21 Vet. App. at 124-125. Although the Board did not request a new VA PTSD examination in the November 2011 remand, the RO prudently scheduled one, which occurred in January 2013. The examiner checked a box indicating the Veteran's level of occupational and social impairment with regards to all mental conditions and this level addresses the rating criteria for evaluating mental disorders under the VA Schedule for Rating Disabilities. However, the VA examiner provided no discussion or description of the effects of the service-connected PTSD upon the Veteran's ordinary activity including employment. 38 C.F.R. § 4.10; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (noting that, to have probative value, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). In light of the deficiencies noted above in the prior opinions, on remand, the RO should an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities alone preclude his ability to obtain or maintain substantially gainful employment. The examination report must include a complete rationale for all opinions and conclusions expressed. Nieves-Rodriguez, 22 Vet. App. at 302. Accordingly, the case is REMANDED for the following action: 1. The RO must obtain updated VA treatment records from the VA facilities in St. Louis. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. 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. 3. Although it is the responsibility of the VA rating specialist in claims for TDIU to determine, based on all the relevant evidence of record--including reports of examination, outpatient treatment records, lay statements, letters from employers, and evidence pertaining to the Veteran's educational background and employment history--whether the Veteran is unable to obtain or retain substantially gainful employment in light of his service-connected disabilities alone, the VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activity which include employment. See 38 C.F.R. § 4.10. This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007), rev'd on other grounds sub nom. Moore v Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). A VA examiner should, in this case, offer such an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (PTSD, bilateral hearing loss, and tinnitus), in combination with each other but without regard to non-service-connected disabilities, preclude his ability to obtain or maintain substantially gainful employment. The examination report must include a complete rationale for all opinions and conclusions expressed. The examiner should note that the Veteran's tinnitus was asymptomatic during his February 2013 examination; however, since the Veteran's tinnitus is a service-connected condition and since it has been symptomatic during the pendency of his claim, the examiner should provide an opinion indicating the effect that the tinnitus, as well as the hearing loss and PTSD, would have had on the Veteran's ability to obtain or maintain substantially gainful employment, to include physical and sedentary types of employment, while symptomatic. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 4. The Veteran is hereby notified -- and should be similarly notified in any scheduling letter which is sent to him concerning the scheduling of any VA examination -- that it is his responsibility to report for any scheduled VA examination, to cooperate in the development of the claim, and that 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 any ordered examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After ensuring that the above development is completed and that the examination reports are adequate, adjudicate the issue of entitlement to TDIU including whether referral for extraschedular consideration of a TDIU is warranted. 38 C.F.R. § 4.16(b). If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. 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 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).