Citation Nr: 0811787 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 02-20 535 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to January 1, 1996. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from August 1985 to July 1986. He was retired from service by reason of an above-the- knee amputation of his left leg resulting from an in-service motorcycle accident. Within a few weeks of his discharge, the veteran filed a claim for VA benefits, including TDIU. In August 1986, the RO granted service connection for amputation of the left leg, assigned a 60 percent evaluation therefor, and denied TDIU. The RO notified the veteran of its decision as to the left leg amputation. However, it did not provide any notice of its determination with respect to TDIU. On March 11, 1998, the veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability. Later that same month, the RO granted TDIU effective from March 11, 1998. The veteran was notified of the RO's decision, and of his appellate rights, but he did not initiate an appeal within one year. As a result, that decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302. 20.1103. In January 2002, the RO informed the veteran that it had failed to notify him of its August 1986 denial of TDIU. He was invited to file a notice of disagreement (NOD) with that decision, if he so desired. The veteran filed an NOD in April 2002. A statement of the case (SOC) was issued in October 2002, and an appeal was perfected by virtue of a substantive appeal received in November 2002. In December 2003, the Board of Veterans' Appeals (Board) remanded the matter to the RO for additional development. In September 2004, while the case was in remand status, the RO determined that it had committed clear and unmistakable error in its March 1998 decision; specifically, that it had failed to recognize that the veteran had never received notice of the August 1986 denial of TDIU, and that his July 1986 claim for TDIU therefore remained open and pending at the time of the March 1998 decision. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Based on that determination, and in light of the evidentiary record, the RO found that January 1, 1996 was the proper effective date for the award. In May 2005, the Board remanded the case for additional development. The RO confirmed and continued the prior determination, and the case was returned to the Board in February 2006. In March 2006, the Board denied the appeal. The Board also denied a subsequent motion for reconsideration. The veteran appealed the Board's March 2006 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2007, the parties to the appeal filed a joint motion asking the Court to vacate and remand the Board's decision. The Court granted the motion later that same month. In August 2007, the Board remanded the case for further development. The RO confirmed and continued the prior determination, and the case was returned to the Board in March 2008. The case is now presented for further appellate review. For the reasons set forth below, this matter is again being REMANDED. VA will notify the veteran if further action is required on his part. REMAND When this case was remanded in August 2007, the Board requested that the agency of original jurisdiction (AOJ) arrange to have the veteran scheduled for a VA examination for purposes of obtaining an opinion as to the likely effect that his service-connected left leg disability had on his ability to obtain and perform substantially gainful work during the period from July 1986 to December 1995. Thereafter, the AOJ was to take adjudicatory action on the veteran's claim with consideration of all the evidence, including, among other things, a VA Form 21-8940 completed by the veteran in April 2006, an affidavit he executed on the same date, and poverty threshold data from the U.S. Census Bureau for the years 1986 to 1995; each of which was added to the claims file after the last supplemental statement of the case (SSOC) in October 2005. Unfortunately, the requested development has not been completed. The evidence shows that the AOJ made arrangements to have the veteran examined, that he failed to report for the examination, and that the AOJ thereafter confirmed and continued the prior denial. However, there is no indication that the AOJ, in denying the claim, considered the evidence received subsequent to the October 2005 SSOC, as directed in the remand: The only evidence listed in the resulting SSOC, dated in December 2007, is the notice the AOJ received of the veteran's failure to report for the requested VA examination. There is no discussion of other any evidence. The Court has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and the fact that the development sought by the Board in this case has not been fully completed, another remand is now required. 38 C.F.R. § 19.9 (2007). On remand, the veteran should be afforded another opportunity to report for the requested examination. The veteran is hereby advised that the examination is being scheduled to assist VA in properly adjudicating his claim, and that his failure to report for the examination may result in his claim being disallowed. The Court has indicated that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran desires help with his claim, he must cooperate with VA's efforts to assist him, to include reporting for scheduled examinations. Id. For the reasons stated, this case is REMANDED for the following actions: 1. Make another attempt to have the veteran scheduled for a VA examination of his left leg. The examining physician must examine the veteran, review the entire record- including the information in the veteran's VA vocational rehabilitation folder-and, after conducting any testing deemed necessary, discuss the likely effect the veteran's service-connected left leg disability had on his ability to obtain and perform substantially gainful work during the period from July 1986 to December 1995. If the veteran does not report for the examination, the examiner should render an opinion based on the evidence available. An explanation should be provided for any opinions offered. 2. Thereafter, take adjudicatory action on the veteran's claim with consideration of all the evidence, including the requested VA medical opinion, the VA Form 21-8940 completed by the veteran in April 2006, the affidavit he executed on the same date, and poverty threshold data from the U.S. Census Bureau for the years 1986 to 1995. If the benefit sought remains denied, furnish an SSOC to the veteran and his representative. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2007).