Citation Nr: 0810419 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 02-17 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1968 to December 1970 and from July 1971 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on May 15, 2007, which vacated a February 2006 Board decision and remanded the case for additional development. The issue initially arose from an August 2002 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2004, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a May 2007 decision, the Court found the prior Board determination had, in essence, failed to provide adequate reasons and bases to support the decision rendered. In a joint motion for remand it was noted, in essence, that a July 2002 VA medical opinion relied upon had not provided an opinion as to whether the veteran's "service-connected disability alone would also cause [him] to be unemployable." VA records show service connection has been established for lumbar disc disease and that a 60 percent rating was assigned effective from October 15, 2001. The record also reflects that the veteran suffers from several non-service connected disabilities, including schizophrenia, hepatitis C, drug abuse, alcohol abuse, and peripheral neuropathy of the lower extremities, attributed to alcohol abuse. In the veteran was award Social Security Administration (SSA) disability benefits, effective in June 1993. The primary basis for the award was bilateral lower extremity spasticity, with a secondary basis being a history of substance abuse (alcohol and drugs). The Board finds the case must be remanded for additional development. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in June 2002 and February 2005. As this case must be remanded for additional development the Board also finds that remedial notice is required as result of the decisions in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Accordingly, the case is REMANDED for the following: 1. The veteran should be provided any additional VCAA notice required on his claim as result of the decisions Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The veteran should be scheduled for an appropriate VA examination for an opinion as to whether his service- connected disability alone would cause him to be unemployable. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history are to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examining physician should note all of the veteran's disabilities. All examination findings, along with the complete rationale for any opinions expressed, should be set forth in the examination report. The examiner is to indicate whether it is as least as likely as not (50 percent probability or greater) that the veteran's service connected disability alone would preclude his obtaining and retaining substantially gainful employment. 3. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the veteran and his attorney should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ RENÉE M. PELLETIER 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) (2007).