Citation Nr: 1335953 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-18 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from June 1971 to January 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In January 2009, August 2010, and November 2012, the Board remanded this claim for additional development. The case has been returned to the Board and is ready for further review. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Reason for Remand: To obtain current manifestations of the service-connected disorders and an adequate opinion as to whether the Veteran is unemployable due t service connected disability. A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The issue here is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Stated another way, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran was last examined for his service-connected back disability in 2010 and for his bilateral ankle disability in 2005. After reviewing the VA examiner's assessment in August 2013, the Board finds that the medical evidence of record is inadequate on which to decide the TDIU claim. In a July 2006 VA Form 21-4192, the Veteran indicated that he had to stop working due to "bad legs'. The August 2013 VA examiner stated that he had elaborated how the service connected disability affects the Veteran's ability to work in both physically demanding and sedentary positions. He reported that as to the ankles, the Veteran would be limited in those occupational functions that would include prolonged walking, climbing, and squatting. He would be limited in those occupations that would require prolonged driving (for gas pedal or clutch). It was stated that he would not be limited in other sedentary employment because of the ankle conditions. As to the back, it was noted that the Veteran would be limited in those occupations that require heavy or unassisted lifting heavier than 20 pounds, bending, crouching, stretching, twisting, pulling repetitive rotation of the back; carrying, pushing, or pulling heavy objects; vibrational stresses; overhead work; and prolonged sitting. The examiner indicated that the Veteran is limited in prolonged standing and walking and would need allowance for rest periods every 30 minutes. While the VA examiner noted the impact and limitations that the ankle and back disabilities impose on the Veteran, the examiner did not address the Veteran's service connected left radiculopathy, nor did he offer the opinion requested by the Board in its recent remand. That is, the examiner did not indicate whether the service-connected disabilities rendered the Veteran unemployable due solely to those disorders, nor did the examiner provide rationale for any such finding. The VA opinion conducted during the pendency of the Veteran's appeal has not specifically evaluated the Veteran's employability, based on disability, occupational history, and experience. Given the absence of relevant clinical information regarding the Veteran's employability, the Board finds that the current medical evidence of record is inadequate to address the Veteran's claim. In the Board's judgment, a new VA examination with an opinion that includes rationale that accounts for the Veteran's previous employment, education, additional training and abilities should be sought. The record is unclear as to the Veteran's employability given his service-connected disabilities, particularly in regard to type of employment consistent with his background, education, and abilities, and the evidence concerning the current manifestations of the disabilities especially the bilateral ankle disorder are not current. Such opinion must be based upon consideration of the Veteran's current medical condition as well as his documented history and assertions, to include employment history and education, and medical evidence associated with the record. 38 U.S.C.A. § 5103A). In this regard, the RO/AMC should ensure that the VA examiner furnishes a full description of the effects of the Veteran's service- connected disabilities upon the Veteran's ordinary activity which includes employment. See 38 C.F.R. § 4.10 (2013). Accordingly, the case is REMANDED for the following actions: 1. 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 must then be given an opportunity to respond. 2. Schedule the Veteran for a VA orthopedic examination and for a VA neurological examination by an examiner(s) who have not previously examined him, to determine the current manifestations of his service-connected disorders, which include, a bilateral ankle disorder, a back disorder and left radiculopathy, and if they render him unemployable, particularly in consideration of his education and past working experience. Taking into account this Veteran's education, training, and work history, (but without regard to the Veteran's age or the impact of any nonservice-connected disabilities), the examiner(s) must opine as to whether it is at least as likely as not that the aggregate impact (i.e. all or any combination of the Veteran's service-connected disabilities) of the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. If the examiner determines that the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 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). The examination report(s) must include a complete rationale for all opinions expressed. If the examiner(s) feel that the requested opinion cannot be rendered without resorting to speculation, the examiners must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). A complete rationale must be provided for any opinion offered. 3. The RO must notify the Veteran that it is his responsibility to report for the examination(s) 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 (2013). In the event that the Veteran does not report for the aforementioned examination(s), 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. After the development requested has been completed, the RO must review the examination report(s) to ensure that it is in complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures at once. 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 Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ 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) (2013).