Citation Nr: 1018656 Decision Date: 05/20/10 Archive Date: 06/04/10 DOCKET NO. 07-06 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado 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 Appellant ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the Veteran's claim was then transferred to the VA RO in Denver, Colorado. In August 2009, the Veteran testified at a Travel Board hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing has been reviewed and is associated with the claims file. 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 After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claim. The Veteran filed a claim for TDIU in March 2005, stating that his service-connected disabilities prevented him from working. The Board observes that he is in receipt of a 50 percent disability rating for bilateral pes planus and a 10 percent disability rating for hallux rigidus of the right first interphalangeal joint. Since these disabilities are based on the same body system, they are combined into a single 60 percent disability rating for TDIU purposes. Thus, the Veteran meets the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a) (2009). However, the most recent competent medical opinion of record regarding the Veteran's employability was proffered in May 2005, nearly five years ago. Furthermore, the Veteran asserted in his August 2009 hearing that his disabilities have worsened. Given the passage of time since his most recent examination and his assertion that his disabilities have worsened, the Board finds that a new compensation and pension examination would assist the Board in clarifying the extent of the Veteran's bilateral pes planus and hallux rigidus of the right first interphalangeal joint and how those disabilities affect his ability to secure or follow a substantially gainful occupation. Therefore, a new examination would be instructive with regard to the appropriate disposition of the issue under appellate review. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Thus, this matter must be remanded for a compensation and pension examination in order to ascertain whether the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. While this claim is in Remand status, the AMC should obtain the Veteran's recent VA treatment records to ensure the evidence is current. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the VA Medical Center in Denver, CO, dated from August 2008 to the present. 2. After obtaining the Veteran's VA treatment records, schedule him with an appropriate medical examination in order to determine whether or not he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file and a copy of this remand should be made available for review in connection with the examination. The examiner should indicate in the report that the claims file was reviewed. If the examiner determines that the Veteran is unable to secure and follow a substantially gainful occupation but cannot determine whether that is due to the Veteran's service-connected disabilities or nonservice-connected disabilities, he or she should state so and give a complete explanation as to why he or she cannot make such a determination. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. Thereafter, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and her representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2009). _________________________________________________ Michelle L. Kane 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) (2009).