Citation Nr: 21068718 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 06-21 463 DATE: November 12, 2021 REMANDED Entitlement to an initial compensable rating for service-connected left obturator nerve injury, associated with left inguinal hernia status post-surgery (left obturator nerve condition), is remanded. Entitlement to a total disability rating based on unemployability (TDIU) due to service-connected disabilities, on an extra-schedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1964 through July 1967, and from November 1976 through November 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions, dated February 2011 and August 2017, issued by a Department of Veterans Affairs (VA) regional office. The issue of entitlement to a TDIU was remanded by the Board in October 2016, May 2018, June 2020, August 2020, and November 2020. In March 2018, the Veteran testified before a Veterans Law Judge (VLJ) regarding, inter alia, his claim of entitlement to a TDIU. A transcript of that hearing has been associated with the claims file. See March 2018 Board Hearing Transcript. As an initial matter, the Board notes that, in June 2020, the Board notified the Veteran and his representative that the VLJ who conducted the March 2018 hearing was no longer with the Board. The Board offered the Veteran a new hearing before another VLJ and provided him with 30 days within which to respond. The Veteran did not respond. Additionally, the Board notes that in his May 2020 VA Form 9, the Veteran requested a Board hearing regarding his claims. However, in correspondence dated January 2021 and March 2021, the Veteran withdrew his request for a hearing. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704. 1. Entitlement to an initial compensable rating for service-connected left obturator nerve condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction to conduct additional development. First, a remand is warranted as the evidence indicates that there may be pertinent medical records, of which VA is aware, that are not associated with the claims file. Specifically, the record indicates that the Veteran receives treatment from Uniontown Pain Management, Western Pennsylvania Neurology, South Hills Pain and Rehabilitation, Dr. R.F. Nino, and Dr. A. Jain. However, no records relating to treatment from Uniontown Pain Management and Western Pennsylvania Neurology have been associated with the claims file since June 2019, and no records relating to treatment from South Hills Pain and Rehabilitation, Dr. Nino, and Dr. Jain have been associated with the claims file since 2017. See Uniontown Pain Management records, received June 2019; Western Pennsylvania records, received June 2019; Dr. R.F. Nino records, received September 2017; South Hills Pain and Rehabilitation records, received August 2017; Dr. A. Jain records, received August 2017. As such, a remand is necessary to allow the AOJ to attempt to obtain pertinent private medical records. See 38 U.S.C. § 5103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, a remand is warranted to afford the Veteran with an adequate examination regarding the severity of his left obturator nerve condition. In December 2019, the Veteran underwent a VA examination in which the examiner noted diagnoses of femoral obturator nerve injury and left leg muscle atrophy. The examiner also noted that the Veteran's peripheral nerve conditions presented with severe constant pain of the left lower extremity, severe paresthesias and/or dysesthesias of the left lower extremity, and severe numbness of the left lower extremity. However, the examiner also noted that the left femoral nerve presented with moderate incomplete paralysis, and the left obturator nerve presented as normal. See December 2019 VA Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ). As such, the Board finds the December 2019 examination to be internally inconsistent and, therefore, inadequate for ratings purposes. Additionally, as noted above, potentially pertinent private medical records have not been associated with the claims file. As such, the December 2019 VA examination is inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the December 2019 VA examination report to be inadequate for ratings purposes. As such, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and severity of his service-connected left obturator nerve condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to a TDIU due to service-connected disabilities is remanded. The Board regrets the delay associated with this remand. However, this claim is inextricably intertwined with the claim for entitlement to an initial compensable rating for service-connected left obturator nerve injury, associated with left inguinal hernia status post-surgery. "[W]here a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources', the two claims are inextricable intertwined." Henderson v. West, 12 Vet. App. 11, 20 (1998); quoting Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is warranted as the evidence indicates that there may be pertinent medical records, of which VA is aware, that are not associated with the claims file. See 38 U.S.C. § 5103(a)(1), (b)(1); Ivey v. Derwinski, supra. Second, a remand is warranted for referral to the Director of the Compensation and Pension Service (Director). A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or as a result of multiple service-connected disabilities, provided one of the disabilities is rated at 40 percent or more and the others bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Further, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extra-schedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Here, throughout the appeal period the Veteran has received benefits for: left femoral nerve injury, rated at 20 percent; tender painful scar, rated at 10 percent; left knee condition, rated at 10 percent; left foot condition, rated at 10 percent; left inguinal hernia status post-surgery, rated as noncompensable; and left obturator nerve, rated as noncompensable. Additionally, since April 22, 2019, the Veteran has received benefits for: Parkinson's disease, rated at 30 percent; speech changes associated with Parkinson's disease, rated at 30 percent; left upper extremity tremors, associated with Parkinson's disease, rated at 20 percent; and right upper extremity tremors, associated with Parkinson's disease, rated at 20 percent. The Veteran's combined rating is 40 percent prior to April 22, 2019, and 80 percent thereafter. Therefore, at no point during the period on appeal has the Veteran met the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). Nonetheless, TDIU may still be awarded on an extra-schedular basis. See 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, the Board must consider whether referral to the Director for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Before referring the matter of extraschedular TDIU to the Director, the rating agencythe agency of original jurisdiction or the Boardmust first determine whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); see 38 C.F.R. § 4.16(b) (stating that, when submitting a veteran's case to the Director, "[t]he rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue")." Here, the Veteran contends that his service-connected disabilities render him unemployable. See December 2010 VA Form 21-8940; February 2011 VA Form 21-8940. The evidence indicates that the Veteran has no education beyond high school, has no specialized training, and his previous work experience was physical in nature. See id. Additionally, in an August 2020 private vocational opinion, the consultant opined that it was at least as likely as not that the Veteran has not been unable to secure and follow substantially gainful employment since at least August 2004 due to his service-connected left inguinal hernia repair, left femoral and obturator nerve injuries, left knee pain syndrome and painful scar, and that he was further precluded from employment due to his service-connected Parkinson's disease since April 2018. See August 2020 Private Vocational Opinion, received November 2020. Moreover, in a November 2020 VA examination report, the examiner noted that the Veteran's Parkinson's disease would render him unable to work due to tremors and difficulty ambulating. See November 2020 Parkinson's Disease DBQ. Based on the evidence above, the Board finds sufficient evidence to substantiate a reasonable possibility that the veteran is unemployable by reason of his or her service-connected disabilities. As such, a remand is necessary for referral to the Director for consideration as to whether a TDIU is warranted on an extra-schedular basis. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the Veteran's claims file any outstanding pertinent medical records, whether VA or private, to include records relating to treatment from Uniontown Pain Management, Western Pennsylvania Neurology, South Hills Pain and Rehabilitation, Dr. R.F. Nino, and Dr. A. Jain, as well as records relating to treatment at Pittsburgh VA Medical Center from September 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the severity of his service-connected left obturator nerve condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including the progression of symptomatology. (b.) Provide a full description of the Veteran's disability and document all signs and symptoms necessary for evaluating his service-connected left obturator nerve condition under the applicable rating criteria. (c.) If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to the degree of functional loss during such flare-ups. (d.) Provide a full description of the effects the Veteran's left obturator nerve condition have had on any occupational functioning and activities of daily living. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. After completing the above, refer to the Director, Compensation and Pension Service, the matter of whether a TDIU is warranted on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). Should the Director indicate that further evidentiary development is required, such development should be undertaken. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.