Citation Nr: 1336382 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-39 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney-At-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION 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 Veteran served on active duty with the United States Army from February 1953 to February 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Houston, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to TDIU. The Veteran testified at a September 2012 hearing before the undersigned, held via videoconference from the RO; a transcript of the hearing is of record. In a December 2012 decision, the Board denied entitlement to TDIU, as well as service connection for a right knee disability. At the same time, a claim for an increased initial evaluation for vertigo was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran appealed the denial of TDIU to the Court of Appeals for Veterans Claims (the Court or CAVC); he did not challenge the denial with respect to the knee. In May 2013, on the basis of a Joint Motion for Partial Remand, the Court vacated the Board's TDIU denial and remanded the matter for further development and consideration. The appeal is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND Service connection for vertigo was granted in an October 2008 rating decision, and an initial evaluation of 10 percent was assigned. The Veteran appealed the assigned evaluation, and during the processing of that appeal, the RO granted an increased 30 percent evaluation, effective the date of service connection. As the RO considered the grant a full grant of the benefit sought on appeal, as it represented the maximum schedular evaluation for vertigo under the applied Diagnostic Code, VA stopped processing of the appeal. The Board determined in December 2012 that in fact there were potentially higher Schedular evaluations available under other Codes, or upon consideration of extraschedular evaluation under 38 C.F.R. § 3.321. The matter was therefore still on appeal, and was remanded to the RO for issuance of a statement of the case (SOC), to permit the Veteran an opportunity to perfect his appeal for an evaluation in excess of 30 percent. Review of the physical claims file, as well as the electronic records maintained as part of the Virtual VA system and Veterans Benefits Management System (VBMS), does not indicate that the SOC has been issued. The question of a final evaluation for vertigo therefore remains open and pending. As was noted in the Joint Motion, a claim for TDIU is dependent upon a determination of the impact of all service-connected disabilities on a Veteran's ability to secure and follow substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16. The remanded appeal for entitlement to TDIU is therefore inextricably intertwined with the pending question of evaluation of vertigo. Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). No adjudication of the TDIU claim may occur until the evaluation for vertigo is finalized. Further, the Court noted that the March 2010 examination relied upon by the Board in denying the claim was not adequate, as the examiner had been specifically instructed to comment on the extent of the functional occupational impairment caused by service-connected hearing loss, tinnitus, and vertigo, and had failed to do so. Remand is required to obtain the requested information. The Board notes that the Veteran has obtained a private vocational assessment of the Veteran, dated in September 2013, and he argues that the Court's directives are met, without need for further remand. The Board disagrees. The Court's dispute was with an inadequate compensation and pension medical examination. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). While the nonmedical vocational assessment certainly provides relevant information and evidence on the Veteran's occupational capacity, it does not reflect the medical assessment and consideration expected from a compensation and pension examination. Compliance with the Court's mandate can only be met through remand for an appropriate VA examination. The Board notes as well that no medical opinion had been requested of the March 2010 VA examiner, despite the characterization of such in the Joint Motion. The adjudicator, either the Board or the RO, is charged with interpreting the competent and credible evidence of record as whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2. While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. The updated clinical observations obtained through current examination, in conjunction with the reflective opinions offered by the Veteran's expert, will be of great assistance is the adjudication of the claim, as will updated VA treatment records. While this case is on remand, any additional outstanding VA treatment records should be obtained. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: (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. Associate with the claims file complete VA treatment records from the medical center in Houston, Texas, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of October 2009 to the present. 2. Schedule the Veteran for an appropriate VA examination to assess the severity of his service-connected vertigo, hearing loss, and tinnitus disabilities. The claims folder should be reviewed in conjunction with the examinations. The examiner must discuss the impact of the Veteran's service-connected disabilities on his occupational capacity. Specifically, the examiner should comment on retained or absent capacities for sedentary or heavy labor, and how the disabilities affect the ability to obtain or retain substantially gainful employment. 3. Issue an appropriate SOC with regard to the evaluation of vertigo, considering the potential for extraschedular evaluation and/or application of other evaluation criteria, such as for Meniere's Disease (Code 6205). If, and only if, the appeal is perfected by a timely filed substantive appeal, this issue should be certified to the Board. 4. Following completion of the above, review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim(s) on appeal. If the benefit(s) sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ LANA K. JENG Acting 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).