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).