Citation Nr: 1330609 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 08-24 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for lumbar sprain and strain, currently rated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from January 1982 to January 2002. The appeal comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board remanded the case in August 2011. The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND In its prior remand of August 2011, the Board noted that a claim for a total disability rating based on individual unemployability (TDIU) based on the appealed lumbar spine disability increased rating claim was part and parcel of that increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). Similarly, a claim for TDIU based on all claimed disabilities is intertwined with a claim for TDIU based on a single service-connected disability where, as here, questions of unemployability due to other service-connected disabilities have been raised by the record, including by the Veteran's hearing testimony. The RO obtained two September 2011 VA examinations, both the first examination, a musculoskeletal examination, and the second examination, a psychiatric examination, failed to consider all the Veteran's service-connected disabilities when addressing the TDIU question, instead limiting their inquiries to the Veteran's unemployability due solely to low back disability or bipolar disorder, respectively. Service connection is in effect for lumbar sprain and strain; radiculopathy of the lower extremities; bipolar disorder; and cervical spine strain, with degenerative changes. The impacts on employability of the lower extremity radiculopathies or the cervical spine disability were not address in the recent examinations, and neither was the combined impact of all of the Veteran's service-connected disabilities. 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. Stegall v. West, 11 Vet. App. 268 (1998). Because this was substantial noncompliance with the prior remand, the current remand for a new examination is required. D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claims. Based on her 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 she is ultimately responsible for providing the evidence. The Veteran and her representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination to determine to determine the effects of her service-connected disabilities on her ability to obtain and maintain employment consistent with her education and occupational experience. A complete list of currently service-connected disabilities must be provided to the examiner. 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 the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the electronic 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. The examiner must also 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, alone or in concert with each other, preclude her from securing and following substantially gainful employment consistent with her education and occupational experience. It is necessary but not sufficient to address the impact of each service-connected disability on the Veteran's capacity for employment. Rather, the combined effect of all the service-connected disabilities must also be addressed in detail. The examiner is also advised that seeking employment should not be considered as dispositive of capacity to obtain or retain employment. This opinion must be provided without consideration of her 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 her responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to her last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above actions, the claims on appeal must be readjudicated. If either issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has 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 she receives further notice; however, she 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).