Citation Nr: 1303353 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-13 166 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU), due to service-connected disability. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from November 1961 to May 1962. In December 2007, the RO granted the Veteran's claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD) and assigned a 10 percent rating, effective August 6, 2003. By a rating action in January 2009, the RO raised the Veteran's rating for his COPD to 60 percent, effective June 12, 2008. In December 2009, the Buffalo RO denied the Veteran's claim of entitlement to a TDIU. In so doing, the RO noted COPD was the Veteran's only service-connected disability. In March 2011, the Board of Veterans' Appeals (Board) confirmed and continued the RO's December 2009 denial of entitlement to a TDIU. Thereafter, the Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court vacated the Board's March 2011 decision and remanded the matter to the Board for further proceedings consistent with the Court's decision. In so doing, the Court cited several deficiencies in the Board's decision. Those deficiencies will be discussed below and will require additional development of the record prior to further consideration by the Board. Accordingly, the appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The Court remanded this matter in June 2012 because the Board failed to explain how the Veteran would obtain or maintain a sedentary position, given his limited educational background and occupational experience. The Court also noted that the VA examiner had stated that the Veteran was capable of sheltered employment but had said nothing about non-sheltered employment. Such deficiencies require additional development of the record, including an opinion by a vocational specialist. In this regard, the Court has held that the Board is not competent to supplement the record with its own unsubstantiated medical conclusions. Where, as here, the medical evidence of record is insufficient, VA is free to supplement the record by seeking an advisory opinion, or ordering a medical examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, the Court stated that the Board had failed to provide reasons and bases as to why the Veteran had been unable to perform pulmonary function tests. Such a deficiency also requires a medical examination and opinion. Colvin. The Court also noted that the Board had not addressed an April 2010 private medical opinion from Dennis J. Nave, M.D. Dr. Nave had alleged that the opinions of the private medical examiners should be given greater weight than the VA examiners, because the private examiners were Board Certified in pulmonary disorders, while the qualifications of the VA examiners were not specified. While Dr. Nave did not provide any other information as to the qualifications of the physicians (VA or non-VA) to whom he was referring, his observation directly takes issue with the expertise of the medical examiners. The Board is unable to ascertain the probative value of their opinions in such circumstances where the examiners' qualifications are questioned. Finally, the Court noted that the Board had not provided reasons and bases as to why the Board had favored the August 2009 VA examiner's opinion that the Veteran was employable over that from Dr. Nave who found the Veteran unemployable. In order to correct the foregoing deficiencies in the record, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Verify the medical credentials of the following VA health care providers who have participated in the Veteran's treatment and/or examination for his service-connected COPD since 2003. This must include, but is not limited to, board certification in internal medicine with a subspecialty in pulmonary disease. Such information must be obtained with respect to the following VA and non-VA health care providers: a. Sven Knudsen Ljaamo, M.D., the examiner who performed the November 2007 and November 2009 VA examinations at the VAMC in Syracuse, New York; b. John C. Sanborn, the VA radiologist who perform the Veteran's radiographic studies during his VA examinations in November 2007 and October 2008; c. Catherine T. O'Hara, the examiner who performed the August 2009 VA examination at the Syracuse VAMC; d. K. Ashutosh, M.D., the Chief of the Pulmonary Disease Service at the Syracuse VAMC who interpreted the Veteran's December 2003 VA pulmonary function tests (as noted on the report of the August 2009 VA examination); e. S. Asif Ali, M.D., the VA primary care physician who requested chest X-rays for the Veteran in August 2008; f. Ankur Puri, the VA Pulmonary Fellow who examined Veteran during a February 2008 pulmonary consultation; 2. Schedule the Veteran for pulmonary examination by a physician who is BOARD CERTIFIED IN INTERNAL MEDICINE AND WITH SUBSPECIALTY IN PULMONARY DISEASE. The examiner must not have treated or examined the Veteran previously. The purpose of the examination is to determine the extent of impairment attributable to his service-connected COPD. All indicated tests and studies must be performed, including, but not limited to, pulmonary function tests. In addition, any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must report whether the results of the pulmonary functions tests are valid, and, if so, the percent of predicted value for the Forced Expiratory Volume in one second (FEV-1); the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC); the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)); the maximum exercise capacity in ml/kg/min oxygen consumption (with cardiac or respiratory limitation); whether or not cor pulmonale (right heart failure) is present; whether or not right ventricular hypertrophy is present; whether or not pulmonary hypertension is present (shown by Echocardiogram or cardiac catheterization); whether or not there have been episode(s) of acute respiratory failure, and; whether or not the Veteran requires outpatient oxygen therapy. If the results of the pulmonary function tests are invalid, the VA examiner must so state. If the Veteran does not perform the pulmonary function tests satisfactorily, the examiner must set forth the possible reasons, therefor. The examiner must opine which reason is most likely and why the other reasons are less likely. Following the examination, the examiner must state whether the Veteran is precluded from performing all forms of substantially gainful employment DUE SOLELY TO HIS SERVICE-CONNECTED COPD. With respect to any opinion, the VA examiner must state how and why he or she reached the opinion they did. 3. When the actions in parts 1 and 2 have been completed, schedule the Veteran for a Social and Industrial Survey to determine whether the Veteran is precluded from performing all forms of substantially gainful employment DUE SOLELY TO HIS SERVICE-CONNECTED CHRONIC OBSTRUCTIVE PULMONARY DISEASE. In particular, the examiner must state whether the Veteran is able to perform unsheltered employment consistent with his education and work experience; that is, the examiner must state whether it is at least as likely as not that the Veteran is employable outside a protected environment such as a family business or sheltered workshop. If the examiner finds that the Veteran is employable outside a protected environment, he or she must identify examples of the types of jobs the Veteran could perform. As above, with respect to any opinion, the VA examiner must state how and why he or she reached the opinion they did. 4. The Veteran is advised that it is his responsibility to report for the examinations and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). Should the Veteran fail to report for a scheduled VA examination/social and industrial survey, place in the claims folder a copy of the notice informing him of the date, time, and place of the examination/social and industrial survey. If the notice is returned by the Post Office as undeliverable, that fact should be noted in writing and also associated with the claims folder. 5. When the actions requested in parts 1, 2, and 3 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).