Citation Nr: 1301239 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 06-22 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: Robin M. Webb, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from January 1955 to December 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2006 of a Department of Veterans Affairs (VA) Regional Office (RO), which denied a schedular rating higher than 70 percent for service-connected paranoid schizophrenia. On appeal of the rating decision to the Board, in a decision in August 2007, the Board denied the claim for a rating higher than 70 percent. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2008, in an Order, pursuant to a Joint Motion for Remand, the Court vacated and remanded the Board's decision. In June 2009, in compliance with the Court's Order, the Board remanded the claim for further development. After the requested development was completed, in a decision in November 2010, the Board again denied a rating higher than 70 percent for service-connected paranoid schizophrenia. The Veteran then appealed the Board's decision to the Court. In June 2012, in Memorandum Decision, the Court found that the Veteran had abandoned his appeal on the claim for a rating higher than 70 percent for service-connected paranoid schizophrenia, because there was no allegation of error in the Board's denial of the claim for increase and the claim is no longer on appeal. The Court did find that the Board failed to ensure compliance with its remand directive in June 2009 to the extent the Board directed that the Veteran be afforded a VA examination and the VA examiner was to comment on whether the service-connected schizophrenia prevented the Veteran from securing or following substantially gainful employment, an implicit recognition of the criteria for the alternative theory of entitlement, namely, a claim for a total disability rating for compensation based on individual unemployability, which was reasonably raised by the record. The Court vacated and remanded the Board's decision in November 2010 as to the reasonably raised claim of a total disability rating for compensation based on individual unemployability. In February 2007, the Veteran appeared at a hearing before an Acting Veterans Law Judge. As the Acting Veterans Law Judge no longer functions in that role, the Board reassigned the case and afforded the Veteran the opportunity for another hearing. In December 2012, in response, the Veteran's attorney reserved the right to request a hearing after the claim has been developed on remand. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. REMAND On the claim for a total disability rating for compensation based on individual unemployability, the Court found that the VA examination requested by the Board in its remand in June 2009 was inadequate, because the VA examiner did not comment on the impact of the Veteran's service-connected schizophrenia on the Veteran's ability to work, that is, to be substantially gainful employed. To ensure compliance with the Board's remand in June 2009 and the Court's Order in June 2012, the case is REMANDED for the following action: 1. Obtain VA records from the Nashville VAMC since October 2009. 2. Afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected paranoid schizophrenia, the only service-connected disability, which is rated 70 percent. In formulating the opinion, the VA examiner is asked to review the Veteran's file, including the reports of VA examinations in December 2005 and in November 2009 and as well as the memorandum decision of the United States Court of Appeals for Veterans Claims, dated in March 2012. 3. Address the Veteran's request for copies of the VA records since October 2009 and a copy of the report of VA examination to be afforded the Veteran before adjudicating the claim. 4. After completing the development, adjudicate the claim for a total disability rating for compensation based on individual unemployability. If the benefit sought is denied, provide the Veteran and his attorney a statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George E. Guido Jr. 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) (2012).