Citation Nr: 1604374 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 03-28 729A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Casey, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1970 to May 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's record is now in the jurisdiction of the Salt Lake City, Utah, RO. In April 2013 and in February 2015, the case was remanded [by Veterans Law Judges other than the undersigned] for additional development and to satisfy notice requirements. The case is now assigned to the undersigned. The issues of service connection for right shoulder, arm, and hand weakness, to include as secondary to a service-connected cervical spine disability, were raised in a December 2006 statement. The Board on four previous occasions referred these issues to the Agency of Original Jurisdiction (AOJ) (see June 2009 and March 2011 decisions and July 2012 and April 2013 remands). However, those issues have not yet been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action on his part is required. REMAND The Board is well aware this matter was remanded twice before (and regrets the delay in final adjudication that is inherent with a remand). Nonetheless, because there has not been substantial compliance with the previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's service-connected disabilities include: residuals of a cervical spine injury, degenerative disc disease, rated 30 percent; headaches associated with residuals of cervical injury, degenerative disc disease rated 10 percent; dizziness, rated 10 percent; acne vulgaris, rated 0 percent; and cataract, aging macular degeneration, ocular hypertension, fundus drusen, pinguecula, macular pucker, and left eye old retinal tear healed associated with headaches, rated 0 percent. The Veteran's total combined service-connected rating is 40 percent. As such, he does not currently meet the criteria for consideration of entitlement to a TDIU rating. The Board's February 2015 remand included instruction that the VA examiner "must provide an opinion as to the functional impairment caused by the Veteran's service-connected disabilities (cervical spine disability, headaches, dizziness, acne vulgaris and eye disability)," and to provide an assessment of the functional impairment of such disabilities as related to "occupational situations such as...sedentary tasks" (emphasis added). A May 2015 VA addendum opinion indicates that the Veteran can only perform sedentary work due to solely to each of his service-connected disabilities of dizziness, headaches, and cervical spine disability. Regarding headaches, the examiner opined that the Veteran can only perform sedentary work provided he is not having a headache episode. This raises questions regarding the frequency and severity of the headaches. Furthermore, the evidence regarding the Veteran's service-connected eye disability is insufficient to assess the impact of each diagnosed eye disability entity on sedentary enmployment; the characterization of the service-connected disability suggests it may be significant, and extend beyond impairment of central vision acuity. As the May 2015 addendum does not include an opinion as to the functional impact of the Veteran's headaches and eye disabilities on sedentary employment and a VA provider has indicated that the Veteran is limited to sedentary employment, a remand for corrective action is necessary. Additionally, the Veteran's claims of service connection for right shoulder, arm, and hand weakness have been pending since December 2006 (approximately 9 years). Notably, a June 2013 VA examination report notes mild radiculopathy of the right upper extremity. Because resolution of the referred claims may impact on the claim for a TDIU rating, consideration of the TDIU claim must be deferred pending resolution of the claims seeking service connectionfor right shoulder, arm, and hand weakness. Accordingly, the case is REMANDED for the following: 1. Regarding right shoulder, arm, and hand weakness disabilities, the AOJ should provide the Veteran the VCAA-mandated notice appropriate for claims seeking service connection, afford him opportunity to respond and arrange for any further development indicated, and then adjudicate such claims. This adjudication must be in a rating decision (adjudication in a supplemental statement of the case (SSOC) is not sufficient). If the claims are denied, the Veteran should be so advised, and also advised of his appellate rights and that the matters will be before the Board only if he initiates (and perfects) an appeal in the matter(s). 2. The AOJ should secure for the record updated (to the present) records of all treatment the Veteran has received for his service connected disabilities. He must assist in the matter by identifying all providers (VA and private). 3. Thereafter, the AOJ should arrange for the Veteran to be examined by an appropriate physician or physicians (for the eye disability, an ophthalmologist) to ascertain the severity of and functional impairment due to each of his service-connected disabilities (if the cervical spine, headaches, dizziness, acne vulgaris, and cataract, aging macular degeneration, ocular hypertension, fundus drusen, pinguecula, macular pucker and left eye old retinal tear healed associated with headaches (and right shoulder, arm, and hand weakness disabilities if such are found to be service connected)). The Veteran's record must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. Regarding the eye disability, the examiner should provide findings sufficient for consideration of all criteria in 38 C.F.R. § 4.79 applicable to each of the disability entities stated to be part of the service-connected eye disability. The symptoms of impairment on occupational functioning due to each disability should be described in detail. The examiner(s) should comment on the types of employment if any that would be precluded by each disability. The examiner(s) should include rationale for all opinions provided. 4. Thereafter, the AOJ should forward the Veteran's record to a vocational specialist for review and an advisory opinion regarding whether the cumulative effect of the Veteran's service-connected disabilities is such as to preclude his participation in any substantially gainful employment consistent with his educational and occupational experience. The consulting expert must explain the rationale for the opinion in detail. 5. The AOJ should then review the entire record and readjudicate the Veteran's claim for a TDIU rating (to include if schedular requirements for TDIU remain unmet, whether referral of the claim for an extraschedular TDIU rating under 38 C.F.R. § 4.16(b) is indicated (if so, the case should be forwarded to the Director of Compensation Service for such a determination)). If TDIU remains denied, the AOJ should issue an appropriate SSOC and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board for further review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).