Citation Nr: 1342983 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-38 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total rating due to individual unemployment resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from March 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded the Veteran's appeal in September 2012. However, as there has not been substantial compliance with the remand directives, the appeal must be unfortunately remanded again. Stegall v. West, 11 Vet. App. 268 (1998). The Board also noted in September 2012 that an issue, concerning entitlement to service connection for a spine disability, had been raised by the record but had yet to be adjudicated by the RO. The Board noted that it did not have jurisdiction over the claim and referred it to the RO for appropriate action. This development is not shown to have been undertaken. As such, the issue of entitlement to service connection for a spine disability is again referred to the RO so that all appropriate action can be undertaken. 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 essentially claims that his established service-connected disabilities prevent gainful employment, warranting a TDIU rating. He is currently service-connected for diabetic neuropathy (30 percent disabling); posttraumatic stress disorder (PTSD) (30 percent disabling); Type II diabetes mellitus with impotence (20 percent disabling); left lower extremity diabetic peripheral neuropathy (20 percent disabling); right lower extremity diabetic peripheral neuropathy (10 percent disabling); residuals of gunshot wounds to the left thigh (10 percent disabling); hypertension (10 percent disabling); and left thigh scar residuals (noncompensably disabling). The combined disability rating is 80 percent. The diabetes and associated complications result from common etiology and may be considered to be one disability with a combined rating that exceeds 40 percent. Therefore, considering the nature of the disabilities in question, the minimum percentage requirements for a TDIU rating set forth in 38 C.F.R. § 4.16 (a) (2013) are met. The case was remanded by the Board in September 2012, to afford the Veteran an examination, to include obtaining comments from VA examiners as to the "combined impact" of his service-connected disabilities on his ability to obtain and maintain gainful employment. The remand also noted that regulations (38 C.F.R. § 4.16) require VA to consider the what the combined effects of the service-connected disabilities are on the Veteran's employment. The Board therefore sought to obtain an opinion that considered the "combined effects" of the service-connected disabilities on the Veteran's employability. One examination ordered as part of the September 2012 remand was conducted in December 2012. The report of this general medical examination shows that the examiner determined that the Veteran's service-connected diabetes mellitus (and related complications), hypertension, erectile dysfunction did not "impact" his ability to work. While the remand asked the examiner to "provide a rationale" for the provided opinions, the examiner did not supply such a rationale. The examiner did find that the Veteran's service-connected bilateral peripheral neuropathy of the lower extremities and left thigh gunshot wound residuals did "impact" his ability work. Concerning these two service-connected disabilities, the examiner added that since the Veteran's retirement in 2005 the Veteran had alleged that his leg pains and numbness had worsened. As before, this does not appear to be sufficient rationale for his opinion. At the conclusion of the examination, the examiner opined that the Veteran's service-connected diabetes mellitus, diabetic neuropathies, erectile dysfunction, hypertension, and gunshot wound residuals "alone" would not prevent the Veteran from obtaining or maintaining gainful employment. It was added that he may be able to perform sedentary work due to "some" of these conditions. The examiner added that the Veteran's impotence would not be a cause for unemployment, and that his diabetic neuropathy caused him some problems occasionally but was usually mild and intermittent. The examiner also observed that the Veteran's gunshot wound residuals had no affect on the Veteran's employment from the time of his service discharge (1969) and his 2005 retirement. Finally, the examiner noted that the Veteran's non-service-connected back problems constituted more of an employment problem. The Veteran was also afforded a VA PTSD examination in January 2013. The examining psychologist commented that the question of whether the Veteran was able to obtain or maintain substantially gainful employment was not a medical determination as much as it was a legal/vocational one. While she did comment on psychiatric symptomatology which affected the Veteran, the examiner added that she was not competent as a medical professional to supply the requested opinion. The Board parenthetically notes that a VA examiner in November 2006, who conducted a PTSD examination, opined that while the Veteran's PTSD was productive of moderate impairment (due to nervousness and irritability) it did not preclude the Veteran from employment. The Board's September 2012 remand specifically asked the examiner(s) to opinion as to whether the Veteran's service-connected disabilities, "alone or in combination" would prevent him from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The above-discussed opinions are inadequate, however, because none of them consider the impact of all service-connected disabilities on the ability to obtain or retain substantially gainful employment. Also, they did not include the requested, and required, "rationale." Thus, additional opinions must be obtained on remand. Stegall, 11 Vet. App. at 268. Given the lack of adequate medical opinions on file, the claim must be remanded for another opinion as to whether all of the Veteran's service-connected disabilities, either alone or in the aggregate, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation, as well as suggestions from the examiner as to type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities given his current skill set and educational background. See Colayong v. West, 12 Vet. App. 524, 538 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran's claims folder to a VA vocational rehabilitation expert to request an opinion as to whether the Veteran's service-connected disabilities: diabetic neuropathy (30 percent disabling); PTSD (30 percent disabling); Type II diabetes mellitus with impotence (20 percent disabling); left lower extremity diabetic peripheral neuropathy (20 percent disabling); right lower extremity diabetic peripheral neuropathy (10 percent disabling); residuals of gunshot wounds to the left thigh (10 percent disabling); hypertension (10 percent disabling); and left thigh scar residuals (noncompensably disabling) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. If an opinion cannot be made without resort to speculation, the expert should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. All findings and conclusions must be set forth in a legible report. 2. The RO/AMC should then readjudicate the claim for entitlement to a TDIU rating. If the benefit sought on appeal remains denied, a supplemental statement of the case should be provided to the Veteran and his representative, and they should be provided 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 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 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). _________________________________________________ MICHAEL MARTIN 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).