Citation Nr: 1340092 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 10-19 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from July 1961 to September 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Since that time, the Pittsburgh, Pennsylvania RO has taken jurisdiction of the claim. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems to ensure a total review of the evidence. 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 The Veteran is seeking entitlement to TDIU, claiming that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Despite the extensive development already undertaken, the Board concludes that a remand is required for additional development. In that regard, the Veteran was afforded a VA examination in October 2007 to consider the effect that his service-connected disabilities had on his employability. At that time, the Veteran was service-connected for a low back disability at 50 percent, bilateral shoulder disabilities at 20 percent each, and a noncompensable left forearm scar. The examiner concluded that the Veteran's low back and shoulder disabilities would make it difficult to work in jobs requiring physical activity. The examiner noted that the Veteran was not trained in sedentary employment, but that he might be able to perform some type of desk work. That said, his nonservice-connected ulnar neuropathy would making sitting at a computer difficult for extended periods. Finally, the Veteran's nonservice-connected cervical spine disability would make both physical and sedentary work difficult. Since the time of the October 2007 VA examination, the Veteran has both been service connected for his cervical spine disability (specifically status post cervical laminectomy for herniated nucleus pulposus at C6-C7) and undergone surgery for the same. Following the January 2008 surgery, the VA treatment records suggest improvement in the Veteran's cervical spine disability. The Veteran was afforded a February 2008 VA examination for his cervical spine, but was under significant restrictions at that time due to his recent neck surgery. The claims file indicates that in December 2009 the RO requested that the Veteran be scheduled for a VA examination, which was scheduled for January 2010. A subsequent record indicates that the Veteran failed to appear for the examination. Significantly, statements from the Veteran and his sister (with whom he lives) state that he did not receive any notification as to the examination. In addition, the claims file does not include the notice letter allegedly provided to the Veteran notifying him of the scheduled examination. The Federal Circuit recently has held that VA cannot apply the presumption of regularity to notice of examinations. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010)). In light of the evidence of possible improvement in the Veteran's cervical spine condition since the October 2007 VA examination and the absence of any concrete evidence of notification as to the scheduled January 2010 VA examination, the Board concludes that another VA examination is required. The AMC also should take the opportunity to associate VA treatment records from December 2009 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA clinical records from December 2009 to the present. 2. After the above has been completed, schedule the Veteran for examination. Timely notice of the VA examination which contains notice of 38 C.F.R. § 3.655 must be mailed to the Veteran's last address of record and a copy of that notice must be placed in the claims file. The examiner must be provided with the entire claims file, including a copy of this remand and a list of the Veteran's service-connected disabilities. The examination report should reflect that a review of the claims file was completed. The examiner should evaluate all of the Veteran's service-connected disabilities. After completing an examination of the Veteran, reviewing the record, and reviewing any specialty examinations obtained, the VA examiner should discuss what functional limitations the Veteran experiences as a result of the cumulative effect of his service-connected disabilities and what impact, if any, these have on his occupational functioning. The examiner should describe if and how the Veteran's service-connected disabilities might impact his ability to perform sedentary, light-duty, and labor-intensive employment. Consideration should not be given to the Veteran's age, and any discussion and/or opinion(s) should be limited to the impact of his Veteran's service-connected disabilities on the ability to obtain or maintain employment. A rationale which considers the clinical and lay evidence of record should accompany any discussion(s)/opinion(s) provided in the report. 3. After the above is complete, readjudicate the Veteran's claim. If a complete grant of all applicable benefits is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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. 2013). _________________________________________________ BETHANY L. BUCK 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).