Citation Nr: 1313737 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-42 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Please note 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). The Veteran served on active duty from June 1987 to February 1993. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In May 2011, the Veteran testified before the undersigned at a Video Conference Hearing. A transcript of this hearing has been included in the claims folder. In February 2012, the Board remanded the issue on appeal to the RO to obtain an opinion on whether the Veteran's service-connected disabilities caused unemployability; VA evaluations were conducted in May 2012 and February 2013. The appeal is again 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 February 2012 Board remand directed the RO to obtain an opinion on whether the Veteran's service-connected disabilities are sufficient in combination to preclude substantially gainful employment. A review of the claims files reveals that a VA musculoskeletal evaluation with employability opinion was obtained in May 2012 and a VA psychiatric evaluation with employability opinion was obtained in January 2013. However, as pointed out by the Veteran's representative in April 2013, there is no opinion on whether the Veteran's service-connected disabilities in combination cause unemployability. The Courts have held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As the above-noted opinion directed by the Board in its February 2012 remand has not been obtained, the RO has not adequately complied with the terms of the Board's February 2012 remand. Id. Consequently, another remand of this case for the additional development is warranted. The Board would also note that although the VA examiner in January 2013 refers to VA treatment records dated in December 2012 and the March 2013 Supplemental Statement of the Case refers to VA treatment reports dated through November 2012, VA treatment reports of record are only dated through September 2009. The current treatment reports need to be made available to the Board prior to adjudication. 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. All relevant VA treatment reports, to include VA treatment records dated from September 2009 to the present, must be added to the record. All attempts to obtain the records must be documented in the claims file. These efforts must continue until it is determined that the records are unavailable or that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2) (2012). If it is found that the records are not available, a formal Memorandum of Unavailability must be prepared for inclusion in the claims folder. 2. The Veteran's claims files and all records in Virtual VA must be made available to a VA health care provider with sufficient expertise to ascertain whether the Veteran is currently unemployable due solely to his service-connected disabilities. The evaluation report should indicate that the claims files were reviewed by the health care provider. The health care provider will provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's service-connected disabilities are sufficient in combination to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. A rationale for the opinion must be provided. The Veteran is currently service-connected for major depressive disorder, lumbar herniated disc, status post fracture of the left tibia and fibula with a chronic knee strain, and a right quadriceps tendon repair. In July 2010 he obtained a bachelor's degree in accounting and has prior work experience as a laborer and supervisor. If the VA health care provider determines that a current examination is needed in order to provide the requested opinion, an examination must be conducted. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The Veteran will be notified of his responsibility to report for any examination scheduled and the consequences for failure to report for an examination without good cause. See 38 C.F.R. §§ 3.158, 3.655 (2012). 3. Thereafter, the TDIU claim will be readjudicated. If the benefit sought remains denied, a Supplemental Statement of the Case will be issued and the appeal will be returned 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).