Citation Nr: 1603817 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 09-43 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for thoracic outlet syndrome, with left arm numbness, currently rated as 40 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) based on service-connected disabilities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to March 1972, and from September 1972 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2011, the Veteran testified at a Travel Board hearing. The Veterans Law Judge who presided at the hearing is no longer employed by the Board. The Veteran was offered another hearing, but declined. In September 2014, the Board denied a rating in excess of 40 percent for thoracic outlet syndrome and awarded a 20 percent rating for residuals of a left humerus fracture. The Board remanded the TDIU issue at that time. The Veteran appealed the Board's denial of the thoracic outlet syndrome issue to the U. S. Court of Appeals for Veterans Claims (Court). The left arm rating was not appealed. In August 2015, the Court signed an order vacating the Board's September 2014 decision and remanding the matter to the Board for action in compliance with the joint motion of the parties. Thus, the thoracic outlet syndrome rating and the matter of a TDIU are presently within the Board's jurisdiction. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. REMAND The Veteran's claims require additional evidentiary development in order to be compliant with the joint motion of the parties, as well as with the Board's September 2014 remand. The Veteran's service-connected thoracic outlet syndrome is rated as 40 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8612, which rates paralysis of the lower radicular group. A separate 20 percent rating is assigned for the left arm limitation of motion due to the residuals of the left humerus fracture. According to the joint motion of the parties, consideration must be given to whether the Veteran's thoracic outlet syndrome and limitation of motion of the left arm can be considered a single entity under all radicular groups under Diagnostic Codes 8513, 8613 and 8713. The record reflects that the Veteran's left upper extremity is his non-dominant side. Under Diagnostic Codes 8513, 8613 and 8713, severe incomplete paralysis, neuritis or neuralgia of all radicular groups is rated as 60 percent disabling. A new examination is needed in order to assess the nature of the Veteran's upper extremity disability in this regard. Remand is, therefore, necessary. With regard to the TDIU claim, the Board's September 2014 remand required the RO to obtain a VA medical opinion (and examination if deemed necessary), as to whether the Veteran's service-connected disabilities are so disabling as to render him unemployable. The RO was to obtain this opinion, and readjudicate the claim. Neither action has occurred since the September 2014 remand. Thus, the RO failed to substantially comply with the September 2014 Board remand directives. Such noncompliance is error on the part of the originating agency. Moreover, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board must once again remand the TDIU issue for compliance. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should undertake appropriate development to obtain any outstanding, pertinent VA and private medical records. If any requested records are not available, the claims files should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the record is developed to the extent possible, afford the Veteran a VA examination by a physician qualified to determine the current severity and manifestations of the Veteran's thoracic outlet syndrome. All pertinent evidence must be made available to and reviewed by the examiner, and any indicated studies should be performed. The RO should ensure that all information required for rating purposes is provided by the examiner. In particular, the examiner should be instructed to determine whether the Veteran's thoracic outlet syndrome and its residuals, to include any residual limitation of motion, can be considered a single entity to be characterized as either mild, moderate or severe incomplete paralysis of all radicular groups (or complete paralysis of all radicular groups). The examiner is also asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities are sufficient by themselves to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and employment background. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The rationale for all opinions expressed must also be provided. 3. The RO should also undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).