Citation Nr: 1300494	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  08-13 849	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1971 to October 1973.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO).  The case was previously before the Board in May 2011 when, in pertinent part, it was remanded for additional development.  

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

The Board finds that another remand for compliance with the previous remand instructions is necessary.  Stegall v. West, 11 Vet. App. 268 (1998).  The Board's May 2011 remand instructed the RO/AMC that it was to adjudicate the Veteran's March 2008 informal claims for higher ratings for his service-connected low back, left knee, right knee, right shoulder and right wrist disabilities.  In addition, if the Veteran was found not to meet the schedular percentage requirements of 38 C.F.R. § 4.16(a), the agency of original jurisdiction was instructed that it must refer the case to VA's Director of Compensation and Pension for consideration of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16(b).  

Review of the Veteran's claims file, including Virtual VA (i.e., VA's electronic data storage system), reveals that there is no evidence the RO/AMC adjudicated the Veteran's informal claims for the above-mentioned service-connected disabilities.  In addition, there is no indication that the Veteran's claim for TDIU was referred to the Director of Compensation and Pension for consideration of his claim under 38 C.F.R. § 4.16(b).  As such, the Board has no discretion and must remand this case.  Stegall.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for claim seeking higher ratings for his service-connected low back, left knee, right knee, right shoulder and right wrist disabilities.

2.  After associating any pertinent, outstanding records with the claims folder, schedule the Veteran for an appropriate VA examination to determine the current nature, severity and manifestations of his service-connected low back, left knee, right knee, right shoulder and right wrist disabilities.  The examiner should conduct all indicated tests and studies, to include range of motion studies and should describe any pain, weakened movement, excess fatigability, and incoordination present.  To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's low back, left knee, right knee, right shoulder and right wrist, i.e., his pain-free range of motion.  

As to his knees, the examiner must discuss whether the Veteran has right knee or left knee instability.

The examiner must also discuss the nature and severity of his left and right-sided lower extremity impairment and state whether the Veteran has bowel or bladder problems related to his low back disability.

3.  Following such, the RO must adjudicate the Veteran's claims seeking higher ratings for low back, left knee, right knee, right shoulder and right wrist disabilities.  Then, if the Veteran does not meet the schedular percentage requirements of 38 C.F.R. § 4.16(a), the agency of original jurisdiction must refer the case to VA's Director of Compensation and Pension for consideration to TDIU under the provisions of 38 C.F.R. § 4.16(b).  

Then readjudicate the Veteran's TDIU claim.  If the benefit on appeal remains denied, issue a supplemental statement of the case.  Thereafter, the case should be returned to the Board, if in order, for further review. 

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. 2011).



_________________________________________________
STEVEN D. REISS
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).