Citation Nr: 1337410 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-37 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to September 1984. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a decision of October 2011, the Board, among other things, denied entitlement to a total disability rating based upon individual unemployability. The Veteran subsequently appealed that determination to the United States Court of Appeals for Veterans Claims (Court) which, in a Memorandum Decision of November 2012, vacated the Board's October 2011 decision to the extent that decision denied entitlement to a total disability rating based upon individual unemployability, and, in so doing, remanded the Veteran's case to the Board for further adjudication. In May 2013, the Veteran's case was once again remanded to the RO for additional development. The case is now, once more, before the Board for appellate review? Upon review of this case, it would appear that, in addition to the issue currently before the Board, the Veteran seeks entitlement to an evaluation in excess of 30 percent for the service-connected postoperative residuals of fusion, bunionectomy, and osteotomy, with residual hallux rigidus of the metatarsal of the right great toe. This was previously denied by the Board, but it appears the appellant wishes to reopen this claim. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and, if necessary, appropriate action. Finally, for reasons which will be apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND At the time of the aforementioned Memorandum Decision in November 2012, it was essentially concluded that the reasons and bases provided in the Board's October 2011 decision were not adequate to support the conclusion that the service-connected disorder did not render the Veteran unemployable. With reference to the aforementioned, a review of the record discloses that the Veteran has had occupational experience as a janitor and warehouseman, with additional training in the areas of stock control and accounting, data processing, and letterset printing. Apparently, the Veteran has completed two years of college, and last worked in 1998. The Veteran's sole service-connected disability consists of the aforementioned postoperative residuals of fusion, bunionectomy, and osteotomy, with residual hallux rigidus of the metatarsal of the right great toe, evaluated as 30 percent disabling. Moreover, pertinent evidence of record is to the effect that the Veteran is currently in receipt of Social Security disability benefits, apparently for disabilities unrelated to his service-connected right great toe. The Board observes that, at the time of a VA podiatric examination in May 2008, it was noted that the Veteran was "unemployed," and that he had been "disabled since 1998." However, no opinion was offered as to whether the Veteran's service-connected disability, in and of itself, was sufficient to preclude its participation in any form of substantially gainful employment. Significantly, while on subsequent VA foot examination in May 2011, a VA physician's assistant indicated that the Veteran's service-connected right toe disability had "no effect" on his occupation, the basis for that opinion was that the Veteran "had been on Social Security disability since 1998 for other than a foot condition." Once again, no opinion was offered as to whether the Veteran's service-connected right great toe disability was sufficient to preclude his participation in all forms of substantially gainful employment. In an attempt to remedy the aforementioned shortcomings, the Board, in May 2013, requested that the Veteran be afforded an additional VA podiatric examination in order to more accurately determine the effect of his service-connected right great toe disability on his ability to obtain and retain substantially gainful employment. However, the opinion provided as a result of that examination is somewhat ambiguous as regards the effect of the Veteran's service-connected right great toe disability on his employability. More specially, following that examination, the examiner indicated that the Veteran could not return to his usual work as a laborer, given that he could not stand for more than a few minutes due to his service-connected foot condition. However, the examiner additionally stated that, in order for the Veteran to perform "sedentary work," it would be necessary for him to obtain "additional retraining or his attendance might be unreliable due to difficulty in getting to and from work with his service-connected foot condition." Significantly, earlier that same day, a VA podiatrist had indicated that the Veteran exhibited only a slight decrease in range of motion, and that, with regard to the Veteran's claim for additional benefits, he was not wheelchair bound, and could ambulate with or without a cane. Interestingly, in correspondence of August 2013, the Veteran commented "I know I don't qualify for [a] TDIU claim." Based on the aforementioned, the Board is of the opinion that additional development of the evidence is necessary prior to a final adjudication of the Veteran's claim for a total disability rating. Accordingly, the case is one again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to July 2013, the date of the most recent VA examination of record, should be obtained and incorporated in the Veterans Benefits Management System (VBMS) electronic file. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the electronic file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the VBMS file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran should then be afforded an additional VA podiatric examination, as well as a VA Social and Industrial Survey, in order to more accurately determine the effect of the Veteran's service-connected right great toe disability on his day-to-day functioning and capacity for employment. To the extent possible, the podiatric examination should be conducted by a podiatrist who has not heretofore seen or examined the Veteran. The Veteran is hereby notified that it is his responsibility to report for the examinations, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination or cooperate in a VA Social and Industrial Survey without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows the notice scheduling the examination was sent to his last-known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the podiatric examination and Social and Industrial Survey, the examining podiatrist should set forth all functional impairment in detail and the social worker should specifically comment as to whether the Veteran's service-connected residuals of fusion, bunionectomy, and osteotomy, with residual hallux rigidus of the metatarsal of the right great toe, in and of itself, when taken in conjunction with his education and occupational experience, and specifically excluding his age and nonservice-connected disabilities, is sufficient to preclude his participation in all forms of substantially gainful employment, including sedentary employment A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's VBMS electronic file. The Veteran's VBMS file must be made available to and reviewed by the examining podiatrist and evaluating social worker prior to completion of their examinations. In addition, the examining podiatrist and evaluating social worker must specify in their reports that the VBMS electronic file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the examination report and Social and Industrial Survey to ensure that they are in complete compliance with the directives of this REMAND, and that the examining podiatrist and evaluating social worker have documented their consideration of all records contained in VBMS and Virtual VA. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for a total disability rating based upon individual unemployability due to service-connected disability on both a schedular and extraschedular basis. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in August 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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 D. LYON 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).