Citation Nr: 1802080 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-00 232A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably in the U.S. Air Force from June 1974 until August 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017 the Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing held in Mobile, Alabama. A transcript of that proceeding is of record. The Legacy Content Manager contains additional VA treatment records through June 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While the Board regrets the delay, remand is required to secure potentially relevant treatment records and to afford the Veteran an adequate examination to assess the degree of functional impairment due to the Veteran's service-connected disabilities. First, remand is required to undertake appropriate efforts to obtain outstanding private treatment records. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim, to include obtaining relevant treatment records. For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1) (2017). At an August 2014 VA appointment, the Veteran reported receiving treatment from a private neurologist for his service-connected lumbar radiculopathy. These records are not associated with the claims file. Remand is required to secure potentially relevant treatment records from the Lyster Army Health Clinic (AHC). In October 2010, the Veteran reported that all of his medical issues were managed through Lyster Army Health Clinic (AHC). VA treatment records through June 2016 document that the Veteran continued to receive all his medications through Lyster AHC. Of record are Lyster AHC records from November 2007 through June 2009, but there are no records after that time period. In December 2010 VA received a response from Lyster AHC that all records had been forwarded to the National Personnel Records Center, however VA treatment records document the Veteran continues to receive care at Lyster AHC. On remand, the Veteran should be provided with the necessary authorization forms to allow VA to obtain those records on his behalf and he should be informed he can also submit them directly. Also, on remand all VA treatment records from June 2016 onward should be identified and associated with the claims folder. Second, remand is necessary to secure another VA examination that addresses the degree of the functional impairment due to the Veteran's service-connected disabilities. When VA undertakes to obtain an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran underwent a VA examination in May 2010 to assess the severity of all his service connected disabilities. The examiner noted the Veteran reported he was no longer working due to pain. The examiner noted that due to spine disease, the Veteran was unable to walk more than a few yards. Regarding the effects the Veteran's service-connected disabilities had on his usual occupation, the examiner only noted the Veteran was not employed. In an August 2010 addendum, the examiner stated that in their medical opinion the Veteran's service-connected disabilities did not impede physical or sedentary employment, but no rationale was provided. While the ultimate decision of whether a Veteran is unemployable due to service-connected disabilities is for the adjudicator, the Board finds the examiner's conclusions regarding the degree of functional impairment to be contradictory to other findings in the examination report and thus clarification is required. On remand, a more detailed explanation regarding the degree of functional impairment in the workplace due to service connected disabilities is required. In this regard, the examiner must address the Veteran's statements that he unable to stand, walk, drive, carry heavy items, or maintain one position for more than a short period of time. He also reported being completely unable to climb a ladder or squat. While the Veteran underwent another VA examination in July 2014 for peripheral neuropathy, that examination did not report the functional impairment resulting from the Veteran's service-connected disabilities other than lumbar radiculopathy. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Specifically request that the Veteran provide the necessary information for the private neurologist he reported receiving treatment from at the August 2014 VA appointment and for the Lyster Army Health Clinic from 2009 onwards. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the functional impairment due to the Veteran's service-connected disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is requested to comment on the ability to function in an occupational environment and describe functional impairment caused solely by the service-connected disabilities. The examiner must elicit an employment and education history from the Veteran, to include the duties involved in his post-service employment. The Veteran is service-connected for the following disabilities: right hip fracture (30%); right knee severe loss of flexion (30%); right tibia and fibula fracture (10%); fracture of the mandible with headaches (10%); lumbar spine disability (10%); right lower extremity radiculopathy (10%); left lower extremity radiculopathy (10%); and facial scars (0%). 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, 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 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. The Veteran 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). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).