Citation Nr: 0812655 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 99-12 755 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision issued by the RO. The Board remanded this case back to the RO for further development of the record in February 2001, December 2005 and December 2006. The law requires that the Veterans Law Judge (VLJ) who conducted a hearing shall participate in making the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2007). By a January 2008 letter, the veteran was given the opportunity to request another Board hearing. In the January 2008 letter, the veteran was also advised that if he did not respond within 30 days, the Board would assume that he did not want an additional hearing. To date, a response has not been received. Thus, the Board assumes that the veteran does not desire an additional hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND Unfortunately, the claims file reflects that a remand of the claim is warranted, even though such will, regrettably, further delay a final decision on the claim on appeal. The United States Court of Appeals for Veterans Claims (Court) has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In the December 2006 remand, the Board requested that the veteran be provided with a general VA examination to obtain an opinion as to the impact of the service-connected disabilities on his ability to work. In this regard, the Board notes that service connection is in effect for peptic ulcer disease, postoperative (40 percent) and post-traumatic stress disorder (PTSD) (0 percent). The veteran received a VA PTSD examination in February 2007. The examiner concluded that the veteran's allegations were not objectively supporting and contemporaneous records in the file did not suggest the presence of PTSD. However, with respect to the remand instructions, the conclusion reached by the examiner is inconsequential because service connection is already in effect for PTSD. To that end the examiner was asked only to opine with regard to the impact of the service- connected PTSD on the veteran's ability to work. Further, the Board notes that there is absolutely no discussion of the service-connected peptic ulcer disease and its impact on the veteran's ability to work. Thus, as required by the December 2006 remand, the examiner has failed to offer an opinion regarding the impact of the service-connected disabilities on the veteran's ability to work. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded another VA examination to determine the current severity of his service-connected disabilities and how they currently affect his employability. The veteran's claims folder, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner must provide an opinion, based on the examination findings and a review of the claims file, on whether the veteran's service- connected peptic ulcer disease and PTSD alone preclude him from obtaining and maintaining gainful employment consistent with his education and occupational experience. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The rationale for all opinions expressed must be provided. The report prepared must be typed. If the examiner determines that any additional examination of a specific service- connected disability is necessary, the RO must schedule and obtain the designated examination from an appropriate health care provider. 2. After completion of all indicated development, the veteran's claim of total rating based upon individual unemployability due to a service- connected disability should be readjudicated in light of all the evidence of record. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The veteran 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). _________________________________________________ CHERYL L. MASON 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).