Citation Nr: 1636804 Decision Date: 09/20/16 Archive Date: 09/27/16 DOCKET NO. 09-26 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Jaime M. Porter, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran appeared and testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in September 2010. A copy of the transcript of this hearing has been associated with the claims file. This case was previously remanded by the Board, in November 2014, for further development. As discussed below, the RO is not in substantial compliance with the Board's directives on remand. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall, 11 Vet. App. at 271. The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. The Veteran's TDIU claim was most recently remanded in November 2014 to obtain a current VA examination assessing the impact of all of the Veteran's service-connected disabilities on his unemployability. Specifically, the RO was directed to obtain a medical opinion as to whether the Veteran's service-connected disabilities, considered in combination, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. Subsequent to the Board's remand, the Veteran was provided several VA examinations. In March 2015, a VA audiologist opined that the Veteran's hearing loss and tinnitus do not prevent him from obtaining gainful employment, but other disabilities were not considered. A PTSD examination was also provided in March 2015, and an addendum opinion followed in June 2015. The examining psychologist stated that the Veteran's physical health service-connected disabilities might preclude him from securing and following substantially gainful employment, but that such an opinion needed to be obtained from an appropriate medical physician. The examiner thus only considered whether the Veteran's service-connected anxiety/PTSD symptoms precluded him from securing and following substantially gainful employment, rather than considering the combined impact of all the Veteran's service-connected disabilities. In a September 2015 disability benefits questionnaire, Dr. D. M., a VA staff physician, opined that the Veteran's combined service-connected disabilities of anxiety/PTSD, diabetes mellitus type II, and dermatitis/psoriasis do not impact the Veteran's employability. However, it appears that an examination was not performed in conjunction with this opinion; moreover, the opining physician did not consider the Veteran's work and educational history or his service-connected disabilities of bilateral hearing loss, tinnitus, and nuclear sclerotic cataract, as directed in the Board's remand. The VA physician also failed to provide a rationale to support the conclusion reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Thus, a remand is warranted to accomplish the Board's November 2014 remand directives by obtaining an adequate opinion in regard to the Veteran's TDIU claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 271. The Board also notes that a June 2016 rating decision granted service connection for bilateral lower extremity peripheral neuropathy and assigned a 10 percent disability rating for the left lower extremity and a 10 percent disability rating for the right lower extremity. However, there is no VA opinion of record as to the impact of these disabilities, considered in combination with the Veteran's other service-connected disabilities, on the Veteran's employability. In summary, the VA examination reports do not adequately address the Veteran's functional impairment due to his service-connected disabilities in combination, as directed by the November 2014 remand. Although an opinion as to the combined effects of the service-connected disabilities is not required, the Board finds that the Veteran is entitled to compliance with the Board's remand instructions. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with a VA examination, conducted by a vocational expert or appropriate medical professional, to determine the effects of all of his service-connected disabilities, in combination, on his ability to maintain employment consistent with his education and occupational experience. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All necessary studies or tests are to be conducted. The examiner must elicit from the Veteran and from the record a full work and educational history for clinical purposes. Based on a review of the evidence, the examiner must provide an opinion as to the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected disabilities, considered in combination, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience? The opinion provided must include an explanation of the bases for the opinion. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion could not be provided without resort to speculation. 2. The RO must notify the Veteran that it is his responsibility to report for any scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ U. R. POWELL 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).