Citation Nr: 1805966 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 09-29 571 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: George Sink, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August 1986 to June 2000. He had subsequent service with the United States Army Reserve from approximately July 2000 to June 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO, inter alia, declined to reopen a claim for service connection for depression, and denied a TDIU. In January 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2009. In August 2010, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In March 2011, the Board reopened the claim for service connection for a psychiatric disability and remanded the claim for service connection, on the merits, along with the claim for a TDIU to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing the further development, the AMC granted service connection for adjustment disorder claimed as posttraumatic stress disorder (PTSD) and depression by rating decision dated in April 2012; this action resolved the matter. However, the AMC also continued to deny the TDIU claim (as reflected in a September 2012 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. In July 2014, the Board, again, remanded the claim on appeal to the RO, via the AMC for further development. After accomplishing further action, the AMC continued to deny the claim (as reflected in a July 2017 SSOC), and returned the matter to the Board for further appellate consideration. As for the matter of representation, the Board points out that the Veteran was previously represented by Disabled American Veterans, as reflected by a February 2008 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative. Subsequently, the Veteran appointed private attorney George Sink as his representative, as reflected by a November 2014 VA Form 21-22a, Appointment of Individual as Claimant's Representative. The Board has recognized the change in representation. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Legacy Content Manager (Virtual VA) claims processing systems. For reasons expressed below, the remaining claim on appeal is, again, being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action on this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. As noted in the prior remand, the Veteran's service-connected disabilities remain hypertensive cardiovascular heart disease with associated complaints of shortness of breath associated with hypertension (rated as 60 percent disabling); adjustment disorder claimed as PTSD and depression (rated as 50 percent disabling); and hypertension (rated as 10 percent disabling). A combined disability rating 80 percent remains in effect. Therefore, the Veteran's service-connected disabilities continue to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a) (2017) for a schedular TDIU. However, the evidence previously of record was deemed inadequate to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, the Board found that the opinions rendered in connection with July 2012 examinations were inadequate. Consequently, in the July 2014 remand, the Board directed the AOJ to arrange for the Veteran to undergo another cardiovascular examination to obtain information as to the impact of the Veteran's separately service-connected hypertension and/or a combination of the Veteran's two distinct cardiovascular disabilities on his employability. In rendering the requested opinions, the examiner was directed to specifically consider and discuss the two distinct cardiovascular disabilities and their effect on his employability. Additionally, the AOJ was to arrange for the Veteran to undergo a psychiatric examination by a licensed psychiatrist to obtain an opinion addressing the functional effects of the Veteran's adjustment disorder, as well as whether the Veteran's adjustment disorder, alone, or that disorder in combination with the Veteran's service-connected cardiovascular disabilities, render(s) him unemployable. The examiner was asked to specifically consider and discuss the comments reflected in the March 2007 private psychiatric examination report. Pursuant to the July 2014 remand, in November 2016, the Veteran underwent VA cardiovascular and psychiatric examinations Unfortunately, the examination reports do not include clear, complete, findings as to the individual and combined functional effects of the Veteran's disabilities, and the conclusions regarding functional impact reflected in the reports contain limited rationale, with no elaboration on how his current symptomatology affects his ability to function adequately in employment. Moreover, limited rationale is provided regarding the combined functional effects of the Veteran's multiple service-connected disabilities. In May 2017, the Veteran submitted a Vocational Employability Assessment from a rehabilitation counselor who concluded that the Veteran's service-connected disabilities of hypertensive cardiovascular heart disease and hypertension alone render him unable to obtain or maintain substantially gainful employment in addition to his service-connected adjustment disorder. The Board points out, however, that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (interpreting 38 C.F.R. § 4.16 (a)). However, as medical professionals are responsible for providing a full description of the effects of disability upon the person's ordinary activity, rather than one or more conclusory opinions, the Board points out that medical comments describing the individual and combined functional effects of the Veteran's service-connected disabilities on his activities of daily living, particularly, employment, would be most helpful in resolving the claim for a TDIU. See 38 C.F.R. § 4.10 (2017); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). Accordingly, the Board finds further remand of this matter is needed to obtain addendum opinion addressing such comments from an appropriate physician- one with occupational and/or vocational expertise-based on claims file review (if possible). See 38 U.S.C. § 5103A ( 2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The AOJ should only arrange for the Veteran to undergo VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain all outstanding pertinent records, to include VA medical records dated from the Columbia VA Medical Center (VAMC) since December 2016. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claim on appeal (particularly as regards any private (non-VA) treatment and/or employment information), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103 (b) ( 2012); but see 38 U.S.C. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103(t 2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Columbia VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since December 2016. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Furnish to the Veteran and his attorney a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish appropriate authorization to obtain, all outstanding pertinent private (non-VA) medical records and/or employment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from a physician with occupational and/or vocational expertise an addendum opinion addressing the individual and combined functional effects of all the Veteran service-connected disabilities, based claims file review (if possible). Only arrange for the Veteran to undergo examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. If the Veteran is examined, all appropriate tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Following a comprehensive review of the claims file, to include the reports of recent cardiovascular and psychiatric examinations, the physician should fully describe functional effects of each of the Veteran's service-connected disabilities-currently, hypertensive cardiovascular heart disease with associated complaints of shortness of breath associated with hypertension, adjustment disorder claimed as PTSD and depression, and hypertension-on his activities of daily living, to include employment. If no single service-connected disability, or groups of like disabilities (i.e., cardiovascular disabilities) alone, is deemed to functionally render the Veteran unemployable, the examiner must consider and discuss the combined functional effects of all the Veteran's service-connected disabilities on his ability to perform the mental and physical acts required for gainful employment. In particular, the physician should describe what types of employment activities would be limited because of the service-connected disability(ies), what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. In addressing the above, the physician must consider and discuss all pertinent medical and other objective evidence, and all lay assertions. In doing so, the examiner may consider the impact/significance of associated medications (if any), as well as the Veteran's education and workplace skills, but not the Veteran's age or distinguishable impairment from any non service-connected disorder(s). Complete, clearly-stated rationale for the conclusions reached must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal, on the merits, in light of all pertinent evidence (to particularly include that added to the VBMS and/or /Virtual VA (Legacy Content Manager) file(s) since the last adjudication), and all legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his attorney a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).