Citation Nr: 1821745 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 09-40 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to September 1973 and from September 1974 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran presented testimony at a personal hearing at the RO in June 2008 and at a Board videoconference hearing before a Veterans Law Judge (VLJ) in October 2012. Transcripts are of record. The VLJ who conducted the October 2012 hearing is no longer with the Board. Pursuant to 38 U.S.C. § 7101(c), in July 2017 the Veteran was offered an opportunity to testify at hearing before a different VLJ. The Veteran responded in July 2017 that she did not wish to appear at another Board hearing. Therefore, the Board finds VA has fulfilled its duty in providing the Veteran an opportunity for another hearing. In January 2015, the Board remanded the issue on appeal for further development. In an October 2017 Board decision, the Board granted the Veteran's claim for service connection for a left shoulder disorder and denied the Veteran's claim for a low back disorder. Also, the October 2017 Board decision remanded the Veteran's claim for entitlement to a TDIU, and as such this is the only claim left before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Here, in the Board's January 2015 remand, with respect to the Veteran's claim for entitlement to a TDIU, the Board remanded this issue in order to obtain a VA examination in conjunction with the Veteran's TDIU claim. This was to be completed after re-adjudicating the claims for service connection for a left shoulder and back disability. The VA examiner was specifically asked to address whether it was at least as likely as not that the Veteran's service-connected disabilities, either singly or taken together, render the Veteran unable to secure or follow a substantially gainful occupation. In a December 2016 VA medical opinion, the VA examiner opined that the Veteran's current shoulder disorder and the Veteran's current back disability are both less likely than not related to the Veteran's service. Furthermore, the VA examiner opined that based on the finding that the Veteran's current shoulder disorder and the Veteran's current back disability were less likely than not related to the Veteran's service, the VA examiner opined that it was less likely than not that the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. However, the Board finds that this VA medical opinion is inadequate for the following reasons. Significantly, since the December 2016 VA medical opinion, in the Board's October 2017 decision granted the Veteran's claim for entitlement to a left shoulder disorder. Thus, as the December 2016 VA medical opinion was based upon the finding that the Veteran's left shoulder disorder was at less as likely as not related to service, which is now contrary to the October 2017 decision granting the Veteran's claim for a left shoulder disability, the Board finds that the December 2016 VA medical opinion lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, based on the Board's October 2017 decision, which reflects that the Veteran is now service-connected for a left shoulder disability, a new VA medical opinion with respect to the Veteran's TDIU claim that considers all the Veteran's service-connected disabilities is required. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from a new VA qualified medical professional in conjunction with the Veteran's claim for a TDIU. After review of the electronic claims files, and performing any required tests and/or studies, the VA examiner must provide an opinion to the following: Whether it is at least as likely as not that the Veteran's service-connected disabilities, either singly or taken together, render the Veteran unable to secure or follow a substantially gainful occupation. The Veteran's service-connected disabilities include: total hysterectomy; shoulder impingement syndrome with rotator cuff tear, status post decompression surgery; arthritis and impingement of right shoulder; urinary incontinence associated with total hysterectomy; scar, left shoulder; and scar, right shoulder. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted or because of some other reason. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 3. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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. §§ 5109B, 7112 (West 2012). _________________________________________________ YVETTE R. WHITE 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).