Citation Nr: 1802548 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 06-11 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability for service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and B.R. ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a September 2011 decision, the Board found that the issue of entitlement to TDIU had been raised by the record and was part and parcel of the increased rating claims pending at that time. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board denied the claim for entitlement to TDIU in February 2014. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In October 2014, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties. The Board remanded the case for further development in November 2014, and the case was subsequently returned to the Board for appellate review. In an August 2015 decision, the Board again denied the claim for entitlement to TDIU, and the Veteran appealed that decision to the Court. In May 2016, the Court granted a Joint Motion filed by the parties. The Board remanded the case in November 2016 and January 2017 to schedule the Veteran for a hearing. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the May 2016 Joint Motion, the Court found that a March 2015 VA examination was internally inconsistent, as the examiner had indicated in one part of the examination that the Veteran had less movement in the right ankle due to ankylosis, among other factors, but then in another part of the examination, indicated that the Veteran did not have ankylosis of the right ankle. The Court also noted that, although the examiner had indicated that the Veteran's right ankle pain and lack of endurance significantly limited functional ability with repeated use over a period of time, and that there was interference with standing, the examiner still determined that there was no functional impact without providing any explanation. Thus, given the inconsistencies in the examination report, in addition to the lack of explanation provided, specifically with regard to the finding that the Veteran had interference with standing, the Court found that the Board should have sought additional clarification or explained why clarification was unnecessary. As such, a remand is warranted. The Court also noted that the March 2015 social survey requested by the Board was conducted by a psychologist and not a social worker, as was specified in the Board's November 2014 remand directives. The Court also noted that the VA Adjudication Procedures Manual Rewrite (M21-1MR) specifies that a social worker should perform the social survey. The Board notes that, since the May 2016 Joint Motion was issued, the Veterans Benefits Administration Adjudication Procedures Manual, M21-1, has been updated to remove guidance on social surveys performed by a social worker. See M21-1, Part III, subpart IV, Chapter 3. An August 2017 letter issued by the Appeals Management Office, which was sent to all Veterans Benefit Administration (VBA) regional centers and offices, also indicated that the Board can no longer remand for social industrial surveys because VA is not equipped to provide such surveys. As such, on remand, a new examination should be obtained which addresses the combined effects of the Veteran's service-connected disabilities and any resulting occupational impairment. Finally, the Board notes that, in December 2017, the Veteran filed a notice of disagreement (NOD) with a July 2017 rating decision, which, in pertinent part, denied entitlement to increased evaluations for his service-connected right ankle and bilateral knee disabilities. Given that the Veteran claims that he is unable to work due to these disabilities, the issue of entitlement to TDIU is inextricably intertwined with the other issues being remanded. The Board does note that the Veterans Appeals Control and Locator System (VACOLS) shows that the RO has acknowledged receipt of that NOD and is processing that appeal. Therefore, a remand for the issuance of a statement of the case (SOC) is not required at this time. See Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). However, the disposition of the TDIU claim must still be deferred pending the resolution of those claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the Veteran's service-connected disabilities, including his right ankle disability, left knee disability, and right knee disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should secure the Veteran's vocational rehabilitation records and associate them with the file. 3. The AOJ should attempt to obtain any updated Social Security Administration (SSA) records pertaining to the Veteran's receipt of disability benefits. 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. 4. After completing the foregoing development, the AOJ should adjudicate the issues the Veteran has expressed disagreement with in his December 2017 Notice of Disagreement (NOD), and if the benefits sought are not granted, the AOJ should issue a Statement of the Case (SOC). 5. After completing the foregoing development, the AOJ should schedule the Veteran for a VA examination to determine the combined effects of his service-connected disabilities and any resulting occupational impairment, to include any impairment from the medication used to treat those disabilities. The examiner should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. The ultimate purpose of the VA examination is to ascertain the combined impact of the Veteran's service-connected disabilities on his ability to work, without regard to his age or nonservice-connected disabilities. The report should indicate how the Veteran's service-connected disabilities alone affect his employability. The report should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the electronic claims folder. 6. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examinations, to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the VBMS file. It should also be indicated whether any notice that was sent was returned as undeliverable. 7. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 8. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS 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).