Citation Nr: 18157434 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 08-09 760 DATE: December 12, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1994 to September 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before the undersigned Veterans Law Judge at a hearing at the RO in September 2011. A transcript from this hearing is of record. In a March 2015 decision, the Board referred the issue of entitlement to TDIU to the RO for appropriate action. However, in December 2015 the parties filed a Joint Motion to Modify the Board Decision to reflect that TDIU was remanded rather than referred to the RO in the March 2015 decision. Parenthetically, in an August 2015 rating decision, the RO denied entitlement to TDIU. A May 2016 Board decision denied entitlement to TDIU. The Veteran appealed the May 2016 Board decision to the Court. In December 2016, the parties submitted a Joint Motion for Remand. In May 2017, the Board again denied entitlement to TDIU. The Veteran appealed the May 2017 Board decision to the Court. In May 2018, the parties filed a Joint Motion for Partial Remand. The issue of TDIU is again before the Board. In an August 8, 2018, letter, the Board informed the Veteran and his counsel that they had 90 days to submit any additional argument or evidence. In an August 8, 2018, letter, the counsel requested the full 90 days through November 1, 2018, to submit additional evidence. In an October 29, 2018, statement, the counsel requested a decision. In any event, the 90-day period has expired. A 100 percent disability rating pursuant to 38 C.F.R. § 4.30 (2017) is in effect from November 30, 2009, to December 31, 2009, and from June 8, 2011, to September 30, 2011. Special monthly compensation (SMC) at the housebound rate is in effect from June 8, 2011, to September 30, 2011, based on the service-connected ovarian disorder being 100 percent disabling and the remaining service-connected disabilities being 60 percent or more disabling. The Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC based on housebound status. Here, however, the Veteran has been awarded SMC based on housebound status, effective June 8, 2011, to September 30, 2011. As such, only the issue of entitlement to TDIU for the period on appeal prior to June 8, 2011, including the period from November 30, 2009, to December 31, 2009, during which time the Veteran was receiving a 100 percent temporary disability rating for the lumbar spine disorder, and for the period since October 1, 2011, is a part of the current appeal. Though the Veteran has perfected an appeal of entitlement to a compensable rating for antiphospholipid syndrome, the electronic Veterans Appeals Control and Locator System (VACOLS) shows that the RO still has jurisdiction over that issue. Thus, that issue is not before the Board at this time. In a July 2015 claim, the Veteran reported that she received treatment at the Orlando VA Medical Center from September 2006 to the present. In October 2015, the RO made two separate requests from that facility – one of which was for the records from September 2006 to the present and the other was for records from September to October 2015. In November 2015, the Orlando VA Medical Center stated that the Veteran was not a current patient. Given the confusion over which period of records was requested, the RO should again obtain any records from the Orlando VA Medical Center from September 2006 to the present. Moreover, the RO should obtain any additional records from the Gulf Coast Veterans Health Care System from November 2018 to the present. The Veteran has received treatment at Eglin Air Force Base as a military retiree. The RO should obtain all records from that facility from September 2006 to the present. Social Security Administration records reflect that the Veteran reported private treatment for her service-connected disabilities. The RO should attempt to obtain records from Drs. Cooper, Dress, and Koszuta. In her August 2017 formal TDIU claim, the Veteran reported that she received worker’s compensation from March 2015 to April 2017. In a September 2017 statement, the counsel argued that the Veteran was not able to work since March 2015 because of her service-connected lumbar spine and headache disorders. A November 2015 VA examination report reveals that the Veteran injured her right shoulder in June 2015 while working and that she was not working because she was receiving worker’s compensation. A July 2015 statement from the Veteran’s then employer also indicates that she was not working because she was on worker’s compensation. The RO should attempt to obtain the worker’s compensation records. Social Security Administration records show that the Veteran worked as a receptionist from May to December 2008 and from July to September 2009. In her July 2018 formal TDIU claim, the Veteran reported that she worked as an emergency medical technician from April 2013 to April 2017 and from April 2018 to the present. The RO should obtain statements from the Veteran’s current and former employers. In her July 2018 formal TDIU claim, the Veteran alleges that all her service-connected disabilities impact her ability to work. She reported that she underwent recent back surgery that resulted in increased radiculopathy in the lower extremities. She also indicated that her current employment is tenuous. Given the conflicting evidence between the last VA examinations in November 2015 and a September 2016 statement of a private vocational expert and the evidence of worsening of some service-connected disabilities, a new examination or examinations are necessary to determine functional impairment. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for her lumbar spine disability, lumbar scar, headaches, residuals of ovarian cysts, sarcoidosis, bilateral radiculopathy of the lower extremities, kidney stones, genital herpes, antiphospholipid syndrome, and any other disabilities related to her TDIU claim, and obtain all identified records. Obtain the Veteran’s VA treatment records from the Orlando VA Medical Center for the period from September 2006 to the present. Obtain the Veteran’s VA treatment records from the Gulf Coast Veterans Health Care System for the period from November 2018 to the present. Obtain the Veteran’s military-retiree treatment records from Eglin Air Force Base for the period from September 2006 to the present. Document all requests for information as well as all responses in the claims file. Ask the Veteran to complete a VA Form 21-4142 for Drs. Cooper, Dress, and Koszuta. Make two requests for the authorized records from Drs. Cooper, Dress, and Koszuta, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s worker’s compensation records from her employer’s insurance company. Document all requests for information as well as all responses in the claims file. 3. Obtain VA Form 21-4192 (request for employment information in connection with claim) from all former employers in 2008 and 2009 and her current employer regarding her employment from 2013 to 2017 and from 2018 to the present. 4. After the development in 1 and 2 is completed, schedule the Veteran for an examination or examinations by an appropriate clinician or clinicians to determine the current severity of her service-connected lumbar spine disability, lumbar scar, headaches, residuals of ovarian cysts, sarcoidosis, bilateral radiculopathy of the lower extremities, kidney stones, genital herpes, and antiphospholipid syndrome. The examiner or examiners should identify any symptoms and functional impairments due to lumbar spine disability, lumbar scar, headaches, residuals of ovarian cysts, sarcoidosis, bilateral radiculopathy of the lower extremities, kidney stones, genital herpes, and antiphospholipid syndrome alone and discuss the effect of the Veteran’s lumbar spine disability, lumbar scar, headaches, residuals of ovarian cysts, sarcoidosis, bilateral radiculopathy of the lower extremities, kidney stones, genital herpes, and antiphospholipid syndrome on any occupational functioning and activities of daily living. 5. Thereafter, the RO must readjudicate the issue on appeal with consideration of all evidence of record and consideration of whether TDIU is warranted based on a temporary (i.e., non-permanent) inability to follow a substantial gainful occupation pursuant to VAOPGPREC 5-2005 (Nov. 25, 2005). If the benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to her counsel, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel