Citation Nr: 1339802 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-47 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). Jurisdiction of the case was subsequently transferred to the RO in Wilmington, Delaware. The Board previously referred a claim for service connection for a stomach disorder, as well as for service connection for a left lower extremity disorder, both as secondary to service-connected disabilities. In December 2012, the Appeals Management Center (AMC) identified such issues in a memorandum; however, to date, there is no indication of record that any action has been taken by the RO with respect to these issues. Given the forgoing, the Board does not have jurisdiction over the Veteran's claim, and it is again referred to the RO for appropriate action. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). The appeal is remanded to the RO via the AMC in Washington, DC. REMAND The claim for entitlement to a total disability rating for compensation purposes based on individual unemployability was remanded in May 2013 in order to schedule the Veteran for a VA examination to determine the impact that his service-connected disorders have on his employability. Examinations that discussed the Veteran's employability with respect to his service-connected thoracolumbar spine and left knee disorders were conducted in July 2012; however, the Veteran was not afforded an examination that discussed his employability regarding his service-connected adjustment disorder, or his service-connected right lower extremity disorder. In this regard, as noted in an August 2013 deferred rating decision, a VA examination addressing the service-connected adjustment disorder and right lower extremity disorder, as well as a medical opinion discussing the impact of such disorders on the Veteran's employability is necessary, in order to comply with the aforementioned remand directive. Moreover, the Board notes that in September 2013, the RO obtained a medical opinion from an independent medical examiner that addressed the impact of the Veteran's service-connected disorders on his employability. While the independent medical examiner rendered an opinion based upon each individual service-connected disorder, she failed to consider the combined effects of all the Veteran's service-connected disorders on his employability. 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). This deficiency must be rectified on remand. 38 C.F.R. § 4.16(a) (2013); See Friscia v. Brown, 7 Vet. App. 294 (1994). Further, with respect to the September 2013 independent medical opinion, the independent medical examiner indicated that it was "mere speculation" to render an opinion regarding the impact of the Veteran's use of medication on his ability to work due to his service-connected disorders, without an understanding of the doses and degree of pain/relief. The examiner further stated that in this case, "this information was not included by the examiner." In this regard, the independent medical examiner noted that her "comprehensive review" of the medications prescribed to the Veteran by the Wilmington, Delaware VA Medical Center revealed a psychiatric medication, namely, Olanzapine, five milligrams in February 2005 that ended in March 2005. The examiner concluded that it "is less likely than not" that the Veteran's medication rendered an effect on his daily functions. In addition to the independent medical examiner's failure to consider the combined effects of all the Veteran's service-connected disorders on his employability, the Board finds the examiner's opinion to be inadequate for other reasons. A cursory review of the record reveals that as of September 2011, during the period on appeal, the Veteran was prescribed Etodolac, 400 milligram tablets, three times per day for pain due to his service-connected thoracolumbar spine disorder. In this regard, the Board notes that the Veteran has multiple disorders that are service-connected, to include adjustment disorder, a thoracolumbar spine disorder, a right lower extremity disorder, left knee synovitis, and left knee status post anterior cruciate ligament tear. Thus, on remand, the RO must ensure that the VA examiner conducting the requested examination considers all of the Veteran's service-connected disorders when rendering an opinion as to the impact of prescribed medication on his ability to work due to such disorders, as the independent medical examiner appears to have only considered the Veteran's psychiatric disorder. Moreover, the independent medical examiner incorrectly related the Veteran's daily functions to employment. As above, she stated that it " is less likely than not" that the Veteran's medication rendered an effect on his daily functions. The inquiry is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disorders, not whether such disorders, to include prescribed medications have an effect on his daily functions. Therefore, the RO must ensure that the VA examiner conducting the requested examination appropriately answers the questions posed by the Board. Finally, the Veteran appears to receive ongoing outpatient treatment for his service-connected disorders at the VA Medical Center in Wilmington, Delaware. The most recent treatment record from such facility is dated in May 2013. Therefore, the RO must attempt to obtain records from the Center dated from May 2013 to the present and associated them with the record. 38 C.F.R. § 3.159(c)(2) (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. Regardless of the Veteran's response, the RO must obtain the Veteran's ongoing VA outpatient treatment records from the VA Medical Center in Wilmington, Delaware, from May 2013 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must adjudicate the issues of entitlement to service connection for a stomach disorder, and entitlement to service connection for a left lower extremity disorder, both as secondary to service-connected disabilities. 3. Thereafter, the Veteran must be afforded an appropriate VA examination to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. All diagnostic tests and studies deemed necessary by the examiner must be accomplished. The examiner must 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 preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his 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. 4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that 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 scheduled examination, 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. 5. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, the RO must readjudicate the Veteran's claim, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he 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) (2013).