Citation Nr: 1419205 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 07-00 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disability since July 12, 2007. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In November 2012, the Board denied the claim, and the Veteran appealed to the United States Court of Appeals for Veterans Claims. In January 2014, the Court granted a joint motion for remand. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities since July 12, 2007. The Veteran is service connected for postoperative residuals of a decompression cervical laminectomy due to cervical stenosis with headaches, evaluated as 60 percent disabling; a kidney/bladder disorder secondary to postoperative residuals of a decompression cervical laminectomy, evaluated as 20 percent disabling; and Type II diabetes mellitus, evaluated as 10 percent disabling. The combined disability evaluation is 70 percent. According to a July 2005 VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability the appellant completed three years of high school, and worked as a janitor from 1990 to 2005. The parties to the joint motion for remand found that the Board failed to consider whether the appellant's ability to perform sedentary work, without moving or bending his head to read or write was gainful employment. On consideration of this finding, and after considering all of the evidence of record, the Board finds that further development is in order. Therefore, this case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's complete VA and private treatment record since 2010. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The Veteran must then undergo a VA social and industrial survey in order to accurately determine the impact of his service-connected disabilities alone on his ability to obtain and retain substantially gainful employment. Following completion of the social and industrial survey, the examiner is to provide a detailed review of the Veteran's pertinent medical history and current complaints, address the severity of each of his service-connected disabilities, and the impact of each on his employability. In particular, the examiner must opine whether the Veteran's service-connected disabilities taken cumulatively and/or individually, in conjunction with his education and occupational experience, are sufficient to preclude his obtaining and retaining any form of substantially gainful (including sedentary) employment. The examining social worker must address the impact that the appellant's ability or inability to move or bend his head to read and write affects his ability to work. The social worker's opinion must not consider the fact that the appellant may be unable to work due to nonservice connected such as chronic obstructive pulmonary disease and a low back disorder. Rather, any opinion must consider only whether the Veteran's service connected neck, headache, kidney, bladder, and diabetes disorders alone prevent all forms of substantially gainful employment that are consistent with the appellant's education and occupational experience. The Veteran's age may not be considered. If the examining social worker finds that the appellant's neck, headache, kidney, bladder and diabetes disorders alone prevent all forms of substantially gainful employment in light of his education and occupational experience, the social worker should offer an opinion as to when the claimant became so disabled. A complete rationale must be provided for any opinion offered, and all information and opinions must be made a part of the Veteran's claims folder. The claims folder, Virtual VA file and VBMS file, must be made available to and reviewed by the examining social worker prior to completion of the examination. The examining social worker must specify in his/her report that the claims file, Virtual VA, and VBMS records have been reviewed. 3. Thereafter, the Veteran must be scheduled for a VA compensation examination by a physician to address the nature and extent of his service connected neck, headache, kidney, bladder, and diabetes disorders, and whether they alone or in combination prevent substantially gainful employment that is consistent with the appellant's education and occupational experience. The examining physician must specifically address how the appellant's purported ability or inability to move or bend his head to read and write affects his ability to work. The impact of the claimant's age, and any nonservice connected disorder to include chronic obstructive pulmonary disease and a low back disorder may not be considered. If the examining physician finds that the appellant's neck, headache, kidney, bladder and diabetes disorders alone prevent all forms of substantially gainful employment in light of his education and occupational experience, the physician should offer an opinion as to when the claimant became so disabled. The claims folder, Virtual VA file and VBMS file, must be made available to and reviewed by the examining physician prior to completion of the examination. The examining physician must specify in his/her report that the claims file, Virtual VA, and VBMS records have been reviewed. 4. The Veteran is hereby notified that it is his responsibility to report for any and all examinations, 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 and examination, documentation should be obtained which shows notice of the scheduled studies was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. 5. The AMC/RO should then review the social and industrial and the VA examination reports to insure that they are in complete compliance with the directives of this REMAND, and that the social worker and the physician have documented their consideration of all records contained in Virtual VA and VBMS. If any report is deficient in any manner, the AMC/RO must implement corrective procedures. 6. The AMC/RO should then readjudicate the Veteran's claim for a total disability rating based upon individual unemployability since July 12, 2007. Should the benefit sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claim for benefits since July 2007. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action until otherwise notified. 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).