Citation Nr: 1329982 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 07-08 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation for post-concussion syndrome with headaches and sleep disorder, in excess of 10 percent prior to December 18, 2012, and in excess of 70 percent from December 18, 2012. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1977, with 4 months and 27 days of prior active service. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a June 2006 rating decision by the Regional Office (RO) in St. Petersburg, Florida, that granted service connection for post-concussion syndrome with headaches, evaluated as noncompensable, effective May 12, 2005. A February 2007 statement of the case assigned a 10 percent evaluation, effective May 12, 2005. This case was previously remanded by the Board in May 2010 and September 2011. An April 2013 rating decision found that the Veteran's post-concussion syndrome with headaches included a sleep disorder and assigned a 70 percent evaluation, effective December 18, 2012, the date of a VA examination showing the relevant symptoms. In July 2013 the Board again remanded the Veteran's claim for additional development. The Veteran was scheduled for a hearing before a Veterans Law Judge in July 2007. The Veteran failed to appear for the hearing. A subsequent motion for a new hearing was denied in September 2007. The Veteran was again scheduled for a hearing before a Veterans Law Judge in May 2011 and was notified by a letter dated in March 2011. In a statement dated in April 2011 the Veteran via his representative requested that the hearing be rescheduled. The Veteran was again scheduled for a hearing before a Veterans Law Judge in July 2011 and was notified by a letter dated in May 2011. However, the Veteran failed to appear for this hearing. His hearing request is therefore deemed to be withdrawn. See 38 C.F.R. § 20.702(f) (2012). The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). In May 2013 the Veteran submitted a form claiming that he was unemployable due to his post-concussion syndrome. The Board has therefore added a TDIU claim to the issues on appeal. Further development is needed to properly adjudicate the TDIU claim. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Review of the claims file reveals that the Veteran applied for Social Security Administration (SSA) benefits. In a VA treatment note dated in August 2007 the Veteran was noted to report that he applied for Social Security disability and to request that the paperwork be completed for SSA. An SSA printout dated in November 2011 indicates under the Social Security Insurance payment code that it was referred to the state. In a statement in support of the claim dated in August 2010 the Veteran reported that he applied for SSI. However, the records regarding the application for SSA benefits have not been associated with the claims folder and the record contains no indication that any attempt was made to obtain the Veteran's complete SSA record. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); see also Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Therefore, this appeal must be remanded to obtain the Veteran's complete SSA record. The VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, if and only if additional records are obtained and associated with the claims file, thereafter afford the Veteran an appropriate examination(s) regarding the severity of his post-concussion syndrome with headaches and sleep disorder. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or from a single accident are considered one disability. Id. In addition, disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, are considered one disability under this section. Id. The Veteran's disability percentages currently meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). In addition, in a VA examination report dated in December 2012 the examiner noted that the Veteran's residual conditions attributable to a traumatic brain injury impact his ability to work. In another VA examination report dated in December 2012 the examiner noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran must be provided with appropriate notice of how to establish a claim for TDIU. In addition, as the Veteran has reported that he is unemployable and there is evidence that the Veteran may be unemployable, he must be afforded a VA medical examination in regard to whether he is unemployable due to his service-connected disabilities. Thereafter, any additional development required and adjudicate the claim. Since the claims file is being returned it should be updated to include VA treatment records compiled since May 2013. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 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. Attempt to obtain and associate with the claims file all VA treatment records regarding the Veteran that are dated since May 2013. 2. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 3. Provide the Veteran appropriate notice with regard the claim for TDIU. The Veteran should be provided an appropriate amount of time to respond to this notification. This notification should be associated with the claims folder. 4. Thereafter, if an only if additional records are associated with the claims file, schedule the Veteran for a VA traumatic brain injury examination for the purpose of identifying any and all current residuals of a traumatic brain injury sustained in service and to determine the current severity of any and all such residuals. The claims file must be reviewed by the examiner and the report should note that review. The examiner is requested to perform all necessary clinical testing and to render all appropriate diagnoses. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Traumatic Brain Injury Examination, which may require scheduling of multiple special examinations by appropriate examiners to examine each area of dysfunction (cognitive, emotional/behavioral (psychiatric), and physical conditions (including neurological dysfunction)) that have resulted from the in-service TBI. The examiner should identify all conditions residual to TBI and any conditions resulting from such residuals. The examiner should also provide an opinion as to the current severity of any such conditions identified as associated with the TBI residuals. The examiner should also specifically address the Veteran's complaints and report of various symptoms and impairment (cognitive, emotional/behavioral (psychiatric), and physical conditions (including neurological dysfunction)) resulting from his traumatic brain injury residuals. The examiner must opine as to whether it is at least as likely as not that any disorder found to be present is a residual of or in any way related to the service-connected TBI. The examiner should also opine as to whether a right or left eye disorder, and/or any manifestation thereof, was caused or aggravated by service, to include as a result of the in-service motor vehicle accident. The rationale for all opinions expressed should be provided in a report. 5. Thereafter, the Veteran should be afforded a VA medical examination to determine whether his service-connected disabilities prevent him from securing and following employment for which his education and occupational experience would otherwise qualify him. The claims folder, including this remand, must be sent to the examiner for review. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities, either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 6. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case (SSOC) provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MICHAEL MARTIN 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).