Citation Nr: 1302604 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 07-25 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to January 1950 and from November 1950 to November 1951. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Waco, Texas RO has since maintained jurisdiction over the claim. The Veteran testified at a Board hearing at the RO in Waco, Texas in March 2010. This transcript has been associated with the file. The case came before the Board in January 2011 and April 2012 at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Board observes that the Agency of Original Jurisdiction (AOJ) has not substantially complied with the April 2012 remand instructions. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. In the April 2012 Board remand, the AOJ was instructed to schedule the Veteran for another VA examination by a vascular specialist to determine if his service-connected cold injury residuals rendered him unable to obtain or maintain substantially gainful employment. The remand also requested that the examiner's credentials as a specialist in disorders of the vascular system be verified. The Veteran was afforded another VA examination in July 2012. This examination was performed by a Physician's Assistant (PA) who indicated that he specializes in vascular surgery. The July 2012 examiner diagnosed the Veteran has having residuals of cold injury and peripheral artery disease (PAD). He opined that the PAD was unrelated to the Veteran's cold injuries incurred during service. Upon review of the claims file and physical examination, the examiner opined that the Veteran's PAD did not significantly impair him from being able to obtain and maintain sedentary employment. The examiner, however, provided no opinion as to whether the Veteran's service-connected disabilities-namely his cold injury residuals of the bilateral upper and lower extremities-rendered him unemployable. Absent an opinion as to whether the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainfully employment, there has not been substantial compliance with the April 2012 remand. Therefore, the claim must again be remanded. Stegall, supra. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination conducted by a specialist in disorders of the vascular system in order to ascertain the effect his service-connected disabilities have on his ability to obtain and maintain substantially gainful employment. The claims file, and any pertinent evidence in Virtual VA, should be made available for review, and the examination report should reflect that such review occurred. The examiner's credentials as a specialist in disorders of the vascular system should be verified. A full employment and educational history should be obtained. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: Is the Veteran unable to obtain or maintain substantially gainful employment due only to his service-connected residuals of cold exposure of the bilateral upper and lower extremities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders? A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 2. Upon completion of the above, review the examination report for compliance with the Board's directives. Any deficiency should be addressed prior to recertification to the Board. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran and his representative should be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ J. K. BARONE 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) (2012).