Citation Nr: 0002650 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 98-10 045A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Wife ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The veteran served on active duty from September 1976 to August 1978 and from March 1980 to May 1985. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of August 1997 from the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim seeking entitlement to a total disability based on individual unemployability due to service-connected disabilities. In August 1999, the Board remanded the case to the RO for the purposes of scheduling the veteran for a hearing before a Member of the Board. It is noted that the appellant and his spouse appeared at a video conference hearing before the undersigned Member of the Board on November 22, 1999, at which time they testified with respect to the claim now at issue before the Board. A transcript of that hearing has been associated with the record on appeal. REMAND The veteran contends that he is entitled to a total rating based on individual unemployability due to his service- connected disabilities. Essentially, he alleges that his back pain in particular is so severe that he can no longer drive because of an inability to sit for prolonged periods of time. The veteran also asserts that he is unable to stand for an extended length of time. On the occasion of the November 1999 videoconference hearing, the veteran testified that he was last employed in February 1998 and began receiving Social Security benefits in the beginning of 1999. The Board finds that the veteran's claim of entitlement to total disability due to individual unemployability is well grounded, as it is plausible and capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). This finding is based on his assertion that symptomatology associated with his service-connected disorders have increased in severity and has rendered him unemployable. Proscelle v. Derwinski, 1 Vet. App. 629 (1992); King v. Brown, 5 Vet. App. 19 (1993). Once determined that a claim is well grounded, VA has a duty to assist in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). The Board observes that the veteran is currently service- connected for chronic discogenic back pain with Reiter's syndrome, evaluated as 10 percent disabling and right inguinal hernia, evaluated as noncompensable. The combined evaluation for the service-connected disorders is 10 percent. Regarding entitlement to a total disability evaluation due to unemployability, the law provides that "[t]otal disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities: Provided, That ... if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more." 38 C.F.R. § 4.16(a) (1999). To warrant a total disability rating based on individual unemployability, the veteran must have present "any impairment of mind or body which is sufficient to render impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340 (1999). The VA will also grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1999). In making its determination, the veteran's age, as well as any nonservice-connected disabilities, is not to be considered as a factor. 38 C.F.R. § 4.19 (1999). In Hatlestad v. Derwinski, 1 Vet. App 164 (1991), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") referred to apparent conflicts in the regulations pertaining to individual benefits. Specifically, the Court indicated there was a need for discussing whether the standard delineated in the controlling regulations was an "objective" one based on average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA Office of General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as a result of service-connected disability shall be rated totally disabled, without regards to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. Op. 75-91 ), 57 Fed. Reg. 2317 (1992). As stated above, the VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1998). This includes the duty to obtain VA examinations which provide an adequate basis upon which to determine entitlement to the benefit sought, as well as the duty to obtain all relevant treatment records referred to by the veteran. Littke v. Derwinski, 1 Vet. App. 90 (1991). Examinations must also address the rating criteria in relation to the veteran's symptoms. Johnson v. Brown, 9 Vet. App. 7 (1996). Consequently, examinations by specialists are recommended in those cases which present a complicated disability picture. Hyder v. Derwinski, 1 Vet. App. 221 (1991). In this case, after review of the record, the Board finds that further development is warranted. In particular, questions exist regarding the true extent of the veteran's Reiter's syndrome upon his ability to secure and follow substantial gainful employment. Throughout the record, the RO has consistently classified the veteran's chronic discogenic back pain, to include the diagnosis of Reiter's syndrome as part and parcel of the back disorder. However, the record also shows that as recently as July 1998, the veteran has had a reactivation of Reiter's syndrome, with inflammatory arthritis of both ankles and both wrists, as reported in an addendum to a VA examination in July 1998. The Board observes that Reiter's syndrome is an unlisted condition and is generally rated by analogy to a closely rated disease. 38 C.F.R. § 4.20 (1999). The RO has evaluated the veteran's Reiter's syndrome under Diagnostic Code 5002 (rheumatoid arthritis). Rheumatoid arthritis is to either be evaluated as an active process or for residuals. Residuals such as limitation of motion or ankylosis, favorable or unfavorable, rate under the appropriate diagnostic codes for the specific joint or joints involved. The RO has limited its evaluation of the veteran's Reiter's syndrome to the extent that it affects his back, in spite of evidence demonstrating an active systemic process with additional manifestations that appear to include other areas of the body, such as the ankles and wrists. A true picture of the total effect of the veteran's Reiter's syndrome upon his employability must therefore be obtained in order to properly evaluate this claim for individual unemployability. VA also has a duty to supplement the record by obtaining an opinion as to the effect that the veteran's service-connected disabilities have upon his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1995); Gary v. Brown, 7 Vet. App. 229 (1994). In this case, the record is devoid of any opinion as to the degree of industrial impairment solely caused by his service-connected chronic discogenic back pain, Reiter's syndrome and right inguinal hernia. The opinion forwarded in the July 1998 VA examination's addendum noted that the veteran was unemployable, but appears to attribute this unemployability to a nonservice connected fibromyalgia. In this regard, a social and industrial survey would be helpful in resolving the claim of a total rating based on individual unemployability. Finally, as noted above, the veteran has asserted that he has applied for Social Security disability benefits. To the extent that these records may be pertinent to the ultimate outcome of this claim, an attempt to obtain records in conjunction with this claim should be made. In view of the foregoing, further appellate consideration is deferred and the case is REMANDED to the RO for the following: 1. The RO should contact the veteran to determine the names, addresses, and dates of treatments of any and all medical care providers who treated the veteran for any service-connected back problems, inguinal hernia and other disorders associated with Reiter's syndrome, not already associated with the claims file. After securing the necessary release, the RO should obtain these records. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the veteran and his representative should be provided with information concerning the negative results and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1999). 2. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. The RO should request that a VA social and industrial survey be conducted in order to obtain information regarding the veteran's employment history. Documentation of the veteran's efforts to obtain employment and rejection thereof, past employment and reasons for termination should be obtained and associated with the veteran's claims folder. His day to day functioning and activity level should be determined and recorded. 4. The veteran should be afforded the appropriate VA examinations to determine the extent and severity of his service- connected disorders as they pertain to his claim of individual unemployability. Regarding the effect of Reiter's syndrome on his ability to obtain and maintain gainful employment, a VA rheumatology examination should be conducted to determine the nature, extent and severity of the veteran's service-connected Reiter's syndrome, to include all the joints and other systemic manifestations shown to be affected by the veteran's service-connected Reiter's syndrome, and the effect that each has on his ability to function on a day-to-day basis. The veteran should also be afforded an orthopedic examination in order to assess additional symptomatology attributable to his service-connected back disability, as well as a gastrointestinal examination regarding any symptoms related to his service-connected right inguinal hernia. All objective findings and all subjective complaints should be legibly recorded. Such tests as the examining physician deems necessary should be performed. The claims folder and a copy of this remand should be made available and reviewed by the examiner prior to the examination of the veteran. The examiner(s) should comment on the effect of each service- connected disability upon his employability, to the exclusion of any nonservice-connected disability. If the examiner is unable to separate the effect of a service connected disability upon employability from the effect of a nonservice connected disability, this too should be noted. The examiner(s) should review the veteran's entire medical history, prior to offering an assessment of industrial and social impairment directly due to his service-connected disabilities. The report of the examination(s) should include a complete rationale for all opinions expressed. 5. Following completion of the above action, the RO must review the claims folder and ensure that the foregoing development has been conducted and completed in full. If this development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, it must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 6. After the above actions have been completed, the RO must then re-adjudicate the claim of entitlement to a total rating based on individual unemployability, with special attention being made to the additional evidence obtained or submitted. If the determination remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case which summarizes the pertinent evidence, fully cites the applicable legal provisions and reflects detailed reasons and bases for the decision reached. The veteran and his representative should be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purpose of this REMAND is to further develop the record and the Board does not intimate any opinion, either factual or legal, as to the ultimate disposition warranted in this case. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).