Citation Nr: 1311048 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 07-29 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and an associate ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to December 1972. This matter initially comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. After the decision was rendered, the case was transferred to the jurisdiction of the VA RO in Honolulu, Hawaii. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2010. A transcript of that hearing is on file. In September 2010, the Board remanded for further development the claims of entitlement to a rating in excess of 50 percent for paralysis of the ulnar and median nerves of the right (dominant) hand, entitlement to a rating in excess of 10 percent for residuals of a fracture of the right wrist and entitlement to a rating in excess of 10 percent for residuals of a donor site bone graft at the left hip, associated with a scar in the left hip region, including entitlement to a separate, compensable rating for the left hip scar. In February 2012, the Board denied the claims of entitlement to an evaluation in excess of 50 percent for paralysis of the median nerve of the right (dominant) hand, entitlement to an evaluation in excess of 10 percent for the residuals of a fracture of the right wrist and entitlement to an evaluation in excess of 10 percent for the residuals of a donor site bone graft at the left hip associated with a scar in the left hip region. An increased disability evaluation of 10 percent was granted for paralysis of the ulnar nerve of the right (dominant) hand. The Board also referred to the RO the claim of entitlement to TIDU. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a partial Joint Motion for Remand (JMR), in a September 2012 order, the Court remanded the part of the decision that referred the issue of entitlement to TDIU for further proceedings consistent with the JMR. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Board finds that further development is needed before the issue on appeal can be decided. To that end, the evidence shows that the Veteran is unemployed. In February 2013, D.P., a Certified Rehabilitation Counselor, opined that it is at least as likely as not that the combination of the Veteran's service connected paralysis, mild ulnar and median nerves of the right hand, residual fracture of the right wrist and bone graft of the left hip have prevented him from securing and following a substantially gainful occupation since at least January 2008 and potentially as far back as 2005. The law provides that TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Moreover, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As such, the TDIU claim is considered to have been raised by the record and thus is a component of the increased rating claim that was before the Board in February 2012. Accordingly, the Board has jurisdiction over this issue. However, in the present case, additional development is required before the claim can be adjudicated, including providing appropriate notice and assistance pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) and adjudicating the claim. Without initial RO review, it is not certain that appellant's due process rights would be fully protected. Accordingly, the case is REMANDED for the following action: The RO must ensure that all VCAA notice and assistance obligations are satisfied concerning the claim for TDIU, to include, if deemed necessary, obtaining a VA opinion on the question of whether it is at least as likely as not that the Veteran is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. Thereafter, the RO should adjudicate the claim for a TDIU. If the benefit is not granted to appellant's satisfaction, it should be returned to the Board following appropriate action. No opinion as to the outcome is intimated by the action taken herein. 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. 2012). _________________________________________________ MICHAEL D. LYON 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).