Citation Nr: 18156835 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-51 246 DATE: December 11, 2018 REMANDED Entitlement to a rating in excess of 10 percent for a chronic lumbar strain is remanded. Entitlement to a rating in excess of 30 percent for coronary artery disease (CAD), status post implanted cardiac pacemaker is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1963 to September 1967. In July 2018, the Veteran withdrew his request for a Board hearing. He has not requested that the hearing be rescheduled. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the issue of TDIU has been expressly raised by the record, and by virtue of the Veteran’s increased rating claims, is still properly before the Board, pursuant to Rice. 1. Entitlement to a rating in excess of 10 percent for a chronic lumbar strain is remanded. 2. Entitlement to a rating in excess of 30 percent for coronary artery disease (CAD), status post implanted cardiac pacemaker is remanded. 3. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Additional pertinent evidence has been added to the record since the issuance of the statement of the case (SOC) in August 2016 and the April 2017 rating decision that continued the 50 percent evaluation for PTSD. This includes VA PTSD, heart conditions and back conditions (spine) examinations and VA treatment records dated from November 2015 to April 2018. The RO has not readjudicated the issues since the additional evidence was added to the record. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the SOC, but prior to certification to the Board is to be addressed in an additional supplemental statement of the case (SSOC). 38 C.F.R. 19.31 (b) (2018). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. 19.37 (b) and 20.1304(c) (2018). Exceptions are when the Veteran or his representative waives this review, or when the Board grants the benefit being sought in full. Id. In this case, additional evidence has been added to the record following certification of the issues on appeal to the Board in November 2016. Neither the Veteran nor his attorney has waived AOJ review of this additional evidence. See 38 U.S.C. § 7105 (e) (2012); 38 C.F.R. § 20.1304 (c) (2018). As such, a remand is required so that a SSOC may be issued with consideration of all the evidence of record with regard to the claims on appeal. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. The Veteran is currently service-connected for PTSD (50% disabling), CAD, status post implanted cardiac pacemaker (30% disabling); diabetes mellitus, type II (20% disabling), chronic lumbar strain (10% disabling), peripheral neuropathy, left lower extremity, sciatic nerve (10% disabling), peripheral neuropathy, right lower extremity, sciatic nerve (10% disabling), and erectile dysfunction (0% disabling). He has had a combined disability rating of 80 percent since August 31, 2010, and thus meets the schedular criteria for TDIU as of that date. An April 2018 PTSD examiner opined that the Veteran did not have PTSD symptoms that would cause functional impairment. April 2018 heart conditions and spine examiners opined that the Veteran’s ischemic heart disease would not preclude light duty or sedentary employment. There is no medical opinion of record addressing the combined effect of all the Veteran's service-connected disabilities on his ability to work. 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 the appellant's service-connected disabilities have on his 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 Court has also held that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant period but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). In light of the evidence noted above, the Board finds it necessary to remand the issue of entitlement to a TDIU in order for a VA examiner to provide a medical opinion as to whether the Veteran is unemployable due to the combined effect of his service-connected disabilities. The Board also notes that because a decision on the remanded increased rating issues could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. Thus, a remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/e-folder. 2. Following completion of the above, provide the Veteran's claims file to an appropriate clinician to provide a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work. 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. Based on a review of the claims file, the examiner must provide a functional assessment of the Veteran's service-connected disabilities and the occupational limitations associated with these conditions, without consideration or any mention of his age or non-service-connected disabilities. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. If, and only if, a new examination is required by the examiner, 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. 3. After completion of the above and any other development deemed necessary, review the expanded record and readjudicate the issues of entitlement to an increased rating for a lumbar strain, entitlement to an increased rating for PTSD, entitlement to an increased rating for CAD, status post implanted cardiac pacemaker, and entitlement to a TDIU, taking into consideration all relevant evidence associated with the record since the August 2016 SOC. If any benefit on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Yankey, Counsel