Citation Nr: 1100937	
Decision Date: 01/10/11    Archive Date: 01/20/11

DOCKET NO.  08-00 624	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Houston, Texas


THE ISSUE

Entitlement to a total disability rating for compensation based 
on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to April 
1990.  

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a rating decision entered in July 2007 by the VARO 
in Houston, Texas, denying the Veteran's claim for a TDIU.  

Pursuant to his request, the Veteran was afforded a hearing 
before the Board, sitting at San Antonio, Texas, in March 2010.  
A transcript of that proceeding is of record.  

The appeal is REMANDED to the RO via the VA's Appeals Management 
Center (AMC) in Washington, DC.  VA will notify the appellant if 
further action is required on his part.


REMAND

The record reflects that VA in September 2009 received claims for 
increase for peripheral neuropathy of the upper and lower 
extremities and for diabetes mellitus, which to date has not been 
adjudicated by the RO and which are inextricably intertwined with 
the issue certified for appellate review, that of the Veteran's 
entitlement to a TDIU.  Further actions are needed as to the 
intertwined issues, prior to the Board's consideration of the 
TDIU matter, and remand is required to permit those actions to be 
undertaken.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) 
(two or more issues are inextricably intertwined if one claim 
could have significant impact on the other).  

In addition, provided a combined schedular evaluation is not 
assigned on the basis of the intertwined claims, further 
evidentiary development of this matter is deemed necessary prior 
to the Board's consideration of the TDIU claim.  In this regard, 
it is noted that a VA examination as to the Veteran's 
employability has not been accomplished in connection with the 
claim at hand and an assessment of the effects of the Veteran's 
multiple disabilities would be of assistance to the Board in 
determining his TDIU entitlement.  The conduct of a VA 
examination is required for compliance with the VA's duty to 
assist under 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010).  

Accordingly, the case is REMANDED for the following actions:


1.  Fully develop and adjudicate the 
intertwined claims for increase for 
peripheral neuropathy of the upper and lower 
extremities and for diabetes mellitus.  If 
any benefit sought by the appellant is not 
granted to his satisfaction, he is advised 
that he must file a notice of disagreement to 
initiate an appeal and, following the 
issuance of a statement of the case, his 
timely filing of a substantive appeal is 
required to ensure consideration of such 
issues by the Board at a later time.

2.  Thereafter, and only in the event a 
combined total schedular evaluation is not 
assigned based on the actions accomplished in 
connection with paragraph (1) above, afford 
the Veteran a VA medical examination in order 
to assess his ability to obtain and maintain 
gainful employment solely on the basis of 
service-connected disabilities.  The claims 
folder in its entirety must be provided to 
the VA examiner for use in the study of this 
case and the report prepared should reflect 
the examiner's statement as to whether in 
fact the claims folder was made available and 
reviewed.  Such examination should include 
the taking of a complete medical history and 
the conduct of a clinical examination and all 
diagnostic testing deemed necessary by the 
examiner.

Upon completion of the above, the VA examiner 
is asked to address the following question in 
detail, providing a rationale for the opinion 
furnished:

Is it at least as likely as not (50 percent 
or greater probability) that the Veteran's 
multiple service-connected disabilities by 
themselves preclude substantially gainful 
employment (more than marginal employment) 
consistent with the Veteran's educational 
background of high school completion and his 
employment history as an owner/operator of a 
landscaping business, but without regard to 
his age?

The clinician is advised that the term as 
likely as not does not mean within the realm 
of possibility.  Rather, it means that the 
weight of medical evidence both for and 
against a conclusion is so evenly divided 
that it is medically sound to find in favor 
of causation as to find against causation.  
More likely and as likely support the 
contended unemployability; less likely weighs 
against the claim.

If the clinician is unable to answer any 
question presented without resort to 
speculation, he or she should so indicate and 
the reasons why.

3.  Lastly, the Veteran's claim for a TDIU 
must be readjudicated on the basis of all the 
evidence of record and all governing law and 
regulations.  If the benefit sought on appeal 
continues to be denied, the Veteran and his 
representative must be provided with a 
supplemental statement of the case, which 
must contain notice of all relevant actions 
taken on the claim for benefits, to include a 
summary of the evidence and applicable law 
and regulations considered pertinent to the 
issue on appeal.  An appropriate period of 
time should then be allowed for a response.  
The case should then be returned to the Board 
for further review.

The Veteran need take no action until otherwise notified.  The 
Veteran has the right to submit additional evidence and argument 
on the matter or matters the Board has remanded to the AMC/RO.  
Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of 
this remand is to obtain additional procedural and evidentiary 
development.  No inference should be drawn as to the outcome of 
this matter by the actions herein requested.

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).



_________________________________________________
MICHAEL A. PAPPAS
Acting 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) (2010).