Citation Nr: 1309653 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 03-22 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date before February 2, 2000, for the grant of a total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: Jeffery W. Haines under the authority of 38 C.F.R. § 14.630 ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to June 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Los Angeles, California. In a decision in June 2004, the Board denied the claim for an earlier effective date for the grant of a total disability rating for compensation based on individual unemployability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2005, the Court granted a Joint Motion for Remand and remanded the matter to the Board for compliance with the Veterans Claims Assistance Act of 2000 (VCAA). In December 2005, the Board remanded the claim for further development. After the remand directive was completed, in a decision in November 2006, the Board denied an effective date before February 2, 2000, for the grant of a total disability rating for compensation based on individual unemployability. The Veteran then appealed the Board's decision to the Court. In a Memorandum Decision in June 2008, the Court vacated the Board's decision and remanded the case to the Board for further proceedings consistent with the Court's decision. In September 2009, in complying with the Court's Memorandum Decision, the Board remanded the claim for adjudication of the claim under 38 C.F.R. § 3.400(o)(2). In May 2011 and September 2012, the Board remanded the case for additional development. Since the requested development has not been completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran is seeking an effective date before February 2, 2000, for the grant of a total disability rating for compensation based on individual unemployability. In the remand in May 2011, the Board noted that before February 2, 2000, the Veteran's combined service-connected disability rating did not meet the minimum percentage requirements for a total disability rating for two or more disabilities with at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more, or one 60 percent disability. As directed in the Board's remand in May 2011, since there was no evidence addressing whether the Veteran was unemployable before February 2000, a VA medical opinion was deemed necessary. The RO, however, failed to obtain a medical opinion and the Board again remanded the matter in September 2012 to obtain an opinion as to whether the Veteran's service-connected disabilities prevented the Veteran from securing or following a substantially gainful occupation from February 1, 1999, to February 2000. In an October 2012 VA examination, the Veteran's medical history was reviewed and the examiner described the Veteran's employment restrictions based on each of his service-connected disabilities for the prescribed time period. The VA examiner, however, failed to provide the requested opinion of whether the Veteran's service-connected disabilities prevented the Veteran from securing or following a substantially gainful occupation. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's file to the VA examiner, who conducted the VA examination in October 2012. If the VA examiner is unavailable, another VA examiner should be substituted. The VA examiner is asked to render an opinion on the following: Whether from February 1, 1999, to February 2000, the Veteran's service connected disabilities, residuals of T-12 fracture with low back pain, residuals of a right shoulder injury, appendectomy scar, postoperative vocal cord polyp, and residuals of fracture of right little finger, with a combined rating of 30 percent, either singularly or jointly, rendered the Veteran unable to secure and follow a substantially gainful occupation. If however after a review of the record, an opinion is not possible without resort to speculation, please clarify whether the opinion is beyond what may be reasonably concluded based on the evidence of record. 2. After the above development is completed, adjudicate the claim for an effective date before February 2, 2000, for a total disability rating for compensation based on individual unemployability, applying 38 C.F.R. § 3.400(o)(2) and 38 C.F.R. § 4.16(b) (extraschedular). If the benefit sought is denied, furnish the Veteran and his representative a supplemental 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 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. 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).