Citation Nr: 1237239	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  09-47 548	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

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


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

N. Snyder, Counsel







INTRODUCTION

The Veteran had active service from December 1983 to May 1984 and May 1985 to April 1994.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  In April 2011, the Board remanded the present matter for additional development and due process concerns. 

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


REMAND

In its April 2011 decision, the Board remanded for an opinion as to whether the Veteran's service-connected disabilities, alone or in aggregate, render him unable to secure or follow a substantially gainful occupation, or otherwise preclude substantially gainful employment.  The record includes opinions as to the impact of each service-connected disability on occupational functioning.  The record does not include an opinion as to the impact of the disabilities in aggregate, however.  

Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Thus, the claim must be remanded for compliance with the April 2011 remand instructions.  

Accordingly, the case is REMANDED for the following action:

1.   Ensure that the record includes up-to-date VA treatment records.

2.  Then return the claims file to the examiner who conducted the March 2012 VA examination (or, if unavailable, to another appropriate VA reviewer).  In an addendum, the examiner must state whether it is at least as likely as not that the service-connected disabilities (esophagitis and prepyloric stomach ulcer; lumbar spine disability; bilateral knee disabilities with limited flexion and limited extension; residuals of cold injury to the feet; sternum fracture; and left testicle hydrocele) collectively render the Veteran unable to secure or follow a substantially gainful occupation. 

The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

3.  Thereafter, readjudicate the claim of entitlement to a TDIU.  If a TDIU remains denied, the appellant must be provided a supplemental statement of the case (SSOC).  The SSOC 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 currently on appeal.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter 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. 2011).





_________________________________________________
RONALD W. SCHOLZ
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) (2011).