Citation Nr: 1339235 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-00 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied the Veteran's claim. In an August 2012 decision, the Board denied the Veteran's claim of entitlement to a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court granted a Joint Motion for Remand, vacating the Board's decision and remanding the case to the Board for further consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action on his part is required. REMAND In this matter, the Veteran asserts entitlement to a TDIU based upon his service-connected disabilities. He is service connected for posttraumatic stress disorder (PTSD), evaluated as 70 percent, and bilateral cataracts, evaluated as 30 percent. His combined disability rating is 80 percent. Accordingly, he meets the criteria for schedular consideration of a TDIU rating as set forth in 38 C.F.R. § 4.16(a). The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2013). With respect to the Veteran's claim of entitlement to a TDIU, the parties to the Joint Motion for Remand determined that the Board erred in relying on a May 2010 VA psychological examination that was not adequate to address the TDIU issue on appeal. Specifically, the parties stated that "the examiner did not indicate if Appellant's PTSD precluded his functioning in a normal work environment, outside of what appears to be limited chores on a small farm." The parties thus agreed that the May 2010 VA psychological examination was inadequate to address if the Veteran's PTSD "precluded his employment in a normal work environment." Therefore, the parties concluded that the matter should be remanded for the Board to obtain an adequate VA medical examination. Additionally, subsequent to the Court Order of February 2013 noted above, the Veteran's attorney submitted additional evidence to the Board with respect to the Veteran's pending appeal for entitlement to a TDIU. The evidence was accompanied by a waiver of review of such evidence by the RO in the first instance. See 38 C.F.R. § 20.1304(c). The pertinent evidence consists of a private employability evaluation report, dated in May 2013, from a certified rehabilitation counselor/disability management specialist. The report is based on the counselor's review of the Veteran's claims file as well as a telephone interview with him. The report suggests a possible change in the level of functional impairment due to the Veteran's service-connected disabilities. Thus, the Board finds that remand is necessary to afford the Veteran a VA psychological examination to address his pending claim pursuant to the mandates of the February 2013 Joint Motion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (holding that where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted); 38 C.F.R. § 3.327(a) (2013). The Board finds that, upon remand, the VA psychological examiner should address the conclusions concerning unemployability set forth in the private vocational assessment dated May 2013, recently submitted on the Veteran's behalf. As indicated above, the Veteran is also service-connected for bilateral cataracts, evaluated as 30 percent. With respect to this disability, the parties to the Joint Motion determined that the Board should address whether the opinions provided were adequate to address his claim of unemployability or whether an additional VA medical examination should be obtained. To this end, the Board observes that in light of the findings of the recently submitted May 2013 private vocational assessment, the evidence of record is unclear concerning the current nature and extent of the Veteran's service-connected bilateral cataracts; a contemporaneous examination is therefore needed. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); & Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The examination conducted pursuant to this Remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the current severity of the symptoms associated with the service-connected bilateral cataracts and to the extent of functional occupational impairment associated with this service-connected disability. Review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). 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) (2013). Expedited handling is requested.) 1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records dated since March 2009. All such available documents should be associated with the claims file. 2. Thereafter, the Veteran should be afforded a VA examination in order to determine the extent of his service-connected PTSD to include the impact of this disability on his ability to secure and follow substantially gainful employment. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies, including X-rays, should be performed. The claims file must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the service-connected PTSD. The results of any such testing and studies should be included in the examination report. The examiner should identify any and all of the Veteran's current psychological disorders. The examiner should provide a detailed account of all manifestations of the service-connected PTSD found to be present. In addition, a Global Assessment of Functioning (GAF) score should be assigned, along with an explanation of the number assigned to the Veteran. The examiner should also detail the nature, extent, and severity of any other psychological disorders. Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. In rendering his/her opinion, the examiner should address the private employability evaluation dated May 2013. A complete rationale should be given for all opinions and conclusions expressed. 3. Then, the Veteran should be afforded a VA examination in order to determine the extent of his service-connected bilateral cataracts to include the impact of this disability on his ability to secure and follow substantially gainful employment. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All tests and studies deemed necessary by the examiner, to include visual acuity testing (uncorrected and corrected central visual acuity for distance and near) and field of vision testing, should be performed. All pertinent eye pathology, which is found on examination, should be noted in the examination report. The examiner must chart any visual field defect using a Goldmann Perimeter Chart (with at least two tests per eye) and discuss any associated impairment of visual acuity. The charts must be made a part of the report of examination. The degree of visual field in all eight principal meridians must also be included not just in the chart, but in the examination report. Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. In rendering his/her opinion, the examiner should address the private employability evaluation dated May 2013. A complete rationale should be given for all opinions and conclusions expressed. 4. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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 or by the Court 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).