Citation Nr: 1343313 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 07-20 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating by reason of individual unemployability on an extraschedular basis due to service-connected disabilities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1967, and from July 1967 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2012, the Board, in pertinent part, denied entitlement to a total disability evaluation based on individual unemployability on an extraschedular basis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2013, the Court granted a Joint Motion for Remand, vacating that portion of the Board's decision denying entitlement to a total disability evaluation based on individual unemployability on an extraschedular basis and remanding for additional proceedings. The issue whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Regarding this new claim the representative argues that extraschedular review by the Director, Compensation and Pension should not be deferred, as the claim does not cover the period of appeal for which the total disability rating based on individual unemployability on an extraschedular basis has been pending. The Board disagrees. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Pursuant to the August 2013 Order of the Court directing action consistent with the joint motion for remand, the Board will remand the Veteran's appeal in order to obtain a VA examination regarding whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. The parties to the joint motion found that VA failed to ensure compliance with the Board's November 2010 remand, directing that the VA examiner consider whether the Veteran's left eye aphakia with traumatic cataract, bilateral hearing loss, and tinnitus disabilities, standing alone, prevented him from securing or following a substantially gainful occupation, without consideration of his nonservice-connected disorders and advancing age. Specifically, the parties to the joint motion for that the January 2011 examination by an audiologist was inadequate since the audiologist did not address the left eye disability when rendering the opinion, and because the audiologist explicitly stated that the opinion offered was based on auditory functioning. The audiologist's decision to defer addressing the impact of the left eye disorder is logical. Indeed, the Board has a duty to address a health care provider's knowledge and skill in analyzing the medical data, and an audiologist would have precious little skill in addressing the impact of an eye disorder on a Veteran's ability to work. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Still, in light of the binding nature of the joint motion further development will be conducted. As noted above, the Veteran has raised a claim to reopen the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. Should service connection be granted for a psychiatric disorder the rating assigned may affect the appellant's entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, to include entitlement on an extraschedular basis. Hence, this issue must be first addressed. Accordingly, the case is REMANDED for the following action: 1. After fulfilling any duty to notify and assist the appellant, the RO must adjudicate the claim to reopen the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. The Veteran is advised that the Board cannot exercise appellate jurisdiction over any denial of this claim absent a timely and perfected appeal. 2. The Veteran should then be afforded a VA social and industrial survey in order to more accurately determine the impact of his service-connected disabilities alone on his ability to obtain and retain substantially gainful employment. The Veteran is hereby notified that it is his responsibility to report for the examination, 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 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 survey, documentation should be obtained which shows notice scheduling that survey was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. 3. Thereafter, schedule the Veteran for VA examinations by physicians to determine the nature, extent and severity of the Veteran's service-connected left eye aphakia with traumatic cataract, bilateral hearing loss, tinnitus, and if appropriate, any psychiatric disability. Each service connected disorder should be examined by a physician with expertise in the particular disorder. The purpose of the examinations is to determine whether the service-connected disabilities have caused this particular Veteran to be unemployable due to his service connected disorders alone. All necessary tests must be performed. The examiner must record pertinent medical complaints, symptoms, clinical findings, and comment on the functional limitation, if any, caused by each of the Veteran's service-connected disabilities. Following their respective examinations, the examiners must prepare a joint opinion addressing whether it is at least as likely as not that the appellant's service connected disorders alone preclude all forms of substantially gainful employment that is consistent with his education and occupational experience. The appellant's age MAY NOT be considered. Each examining physician must be provided access to the appellant's claims folder, Virtual VA and VBMS files for review. The examiners must state whether such review was accomplished. The examiners must provide a discussion of the rationale for all opinions rendered with consideration of the pertinent medical and lay evidence of record. The examiners must specifically address whether they agree or disagree with the November 2013 opinion by Solutions Consulting, and the reasons for any agreement or disagreement. 4. The RO should then readjudicate the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. If the claim remains denied, the case must be submitted to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of the appellant's entitlement to a total disability evaluation based on individual unemployability due to service connected disorders on an extra-schedular basis under 38 C.F.R. § 4.16(b). 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). _________________________________________________ DEREK R. BROWN 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).