Citation Nr: 1753416 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-16 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based upon individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from September 1990 to April 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned at a March 2016 Travel Board hearing. The hearing transcript is of record. In May 2016, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND In a February 2017 statement, the Veteran noted that the RO, in its most recent Supplemental Statement of the Case (SSOC) did not consider pertinent evidence, including private treatment records from Charlotte Eye, Ear, Nose & Throat Associates, VA treatment records from the Dorn VA Medical Center, private treatment records from OrthoCarolina, private treatment records from Novant Health Presbyterian Urgent Care Charlotte, medication lists from Nalle Pharmacy and Target Pharmacy, a Central Piedmont Community College transcript, a copy of the Schedule C, Profit or Loss from Business form of his 2015 tax returns and a February 2016 Vocational Evaluation. The Veteran indicated that he would like for the RO to review this evidence before his case is adjudicated again by the Board. However, the Board notes that in another February 2017 statement, the Veteran's attorney indicated that the Veteran was waiving RO consideration of the February 2016 Vocational Evaluation. See February 16, 2017 letter from the Veteran's attorney, regarding Vass Vocational Evaluation. In addition, the Board notes that the RO reviewed the medical records from OrthoCarolina dated from October 2008 to July 2010 and VA treatment records from the Columbia, South Carolina VA Health Care System, which include records from the Dorn VA Medical Center dated from March 1998 through January 2017, in the April 2012 Statement of the Case (SOC) and the May 2015 and January 2017 SSOC. Because the RO did not address the evidence noted above (with the exception of the treatment records from OrthoCarolina, treatment records from the Dorn VA Medical Center and the February 2016 Vocational Evaluation) in the most recent SSOC issued in January 2017, and the Veteran has not waived initial consideration of the evidence by the RO, a remand is necessary to ensure due process is satisfied. See 38 C.F.R. § 20.1304(c). The United States Court of Appeals for Veterans Claims has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect service-connected disability has on the Veteran's ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In addition, 38 C.F.R. § 4.16 holds that the Board must consider the impact of all of the Veteran's service-connected conditions on his ability to obtain and maintain gainful employment. The Board also notes that the Veteran was afforded VA examinations to evaluate his service-connected migraine headaches, left knee disability and psychiatric disorder in September 2016. The VA examiners opined that each separate disability did not preclude the Veteran from performing all types of substantially gainful employment. However, there is no evidence of record that comments on functional impairment caused solely by the Veteran's service-connected disabilities relative to his ability to work. As a result, the Board finds it necessary to remand the issue of entitlement to a TDIU, in order for a VA examiner to comment on functional impairment. Accordingly, the case is REMANDED for the following action: 1. Copies of pertinent updated treatment records should be obtained and added to the claims file. 2. Following completion of the above, provide the Veteran's claims file to an appropriate clinician for comment on functional impairment caused solely by the Veteran's service-connected disabilities relative to his ability to obtain and maintain substantially gainful employment consistent with his education and occupational experience. An in-person examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. If a new examination is warranted, the examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Based on a review of the claims file and any current examination, the examiner must provide a functional assessment of the Veteran's service-connected disabilities and his ability to work consistent with his education and occupational experience, and without consideration of his age or non-service-connected disabilities. Age and nonservice-connected disabilities should be neither considered nor mentioned. The examiner should be provided with a list of the Veteran's service-connected disabilities. c. The examiner must provide all findings, along with a complete rationale for his or her comment(s), in the examination report. If any of the above requested comment(s) cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After completion of the above and any other development deemed necessary, review the expanded record, to include any the new evidence associated with the record, as well as private treatment records from Charlotte Eye, Ear, Nose & Throat Associates, private treatment records from Novant Health Presbyterian Urgent Care Charlotte, medication lists from Nalle Pharmacy and Target Pharmacy, a Central Piedmont Community College transcript and a copy of the Schedule C, Profit or Loss from Business form of the Veteran's 2015 tax returns, and the medical opinion requested above, and readjudicate the issue on appeal. The AOJ should also consider the February 2016 Vocational Evaluation. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. 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. §§ 5109B, 7112 (2014). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).