Citation Nr: 1633586 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 12-10 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran had active service in the United States Army from November 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), that, in part, denied entitlement to TDIU. The record reflects that the Veteran had requested a video conference hearing in his March 2012 VA Form 9 in conjunction with his appeal. Such hearing was scheduled for March 2013. However, the record reflects the Veteran failed to report for this scheduled hearing, and no good cause has been shown for this failure. Therefore, his hearing request is deemed withdrawn. See38 C.F.R. §§ 20.702, 20.704. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's service-connected disabilities include allergic rhinitis, acne vulgaris, and chronic obstructive pulmonary disease (COPD) (secondary to service-connected allergic rhinitis), for a combined schedular rating of 60 percent effective from June 12, 2010. The Veteran's allergic rhinitis and COPD affect a single body system, the respiratory system, and result from a common etiology, and thus the Veteran's service-connected allergic rhinitis and COPD are considered one disability. Therefore, he satisfies the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). In this regard, the United States Court of Appeals for Veterans Claims upheld a finding that a veteran with three service-connected disabilities, resulting from a single accident and yielding a combined rating of 60 percent, to meet the schedular criteria set forth in 38 C.F.R. § 4.16(a), despite other unrelated service-connected disabilities evaluated as noncompensable. See Gary v. Brown, 7 Vet. App. 229, 231 (1994). What remains to be determined is whether the functional impairment associated with his service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. The Veteran contends that he was last gainfully employed in 1999 as a senior product design release engineer for Ford Motor Company, and that he retired because he received an early out. See August 2010 VA respiratory examination; see also July 2011 notice of disagreement. The evidence shows that his educational background includes approximately 3 years of college education. See October 2010 VA Form 21-8940. On April 2011 VA general examination, after noting the Veteran's signs and symptoms associated with his service-connected disabilities, it was opined that the Veteran's service-connected disabilities are not likely preventing him from doing his daily routine activities, and sedentary jobs. The Board finds that the opinion is entitled to no probative value due to its conclusory nature. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In July 2011, the Veteran submitted a private medical letter from Dr. R.P., in which it was opined that the Veteran was unable to work due to his COPD. Similarly to the above-noted April 2011 VA general examination, no supporting rationale was provided for the opinion, and it too is entitled to no probative value due to its conclusory nature. Stefl, 21 Vet. App. at 124. The Veteran contends that his last job involved standing on his feet all day and that he was out of breath at the end of the day. See March 2012 VA Form 9. Accordingly, the Board finds that the Veteran should be provided a VA examination to address the impairment produced by his service-connected disabilities. A current VA examination should be scheduled. Finally, the Veteran's claims file should be updated to include relevant VA treatment records dated since April 2011. 38 U.S.C.A. § 5103A(c) ; see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim); Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (holding that 38 C.F.R. § 3.159(c)(3) expanded VA's duty to assist to include obtaining VA medical records without consideration of their relevance). Accordingly, the case is REMANDED for the following action: 1. The RO should associate with the claims file updated VA treatment records since April 2011, as well as any identified outstanding private treatment records that have not been associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After completion of the development requested above, schedule the Veteran for VA respiratory examination regarding his claim for a TDIU rating to determine the current severity of his service-connected allergic rhinitis and COPD. The claims file should be made available to and reviewed by the examiner. All appropriate tests should be conducted. All findings, along with a fully articulated medical rationale for all opinions expressed, should be set forth in the examination report. 4. The RO should then readjudicate the Veteran's claim and should not be returned to the Board prior to completion of the above development. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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 2015). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).