Citation Nr: 1313829 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-37 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating higher than 70 percent for bipolar disorder. 2. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: Robert V. Chisolm, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1962 and April 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, the Veteran appeared at hearing before a Veterans Law Judge. A transcript of the hearing is of record. In a decision in March 2011, the Board denied the claims for increase. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision in June 2012 decision, the Court vacated the Board's decision and remanded the matter to the Board for readjudication consistent with the Court's decision. In September 2012, the Board notified the Veteran that the Veterans Law Judge who conducted the hearing in October 2010 was no longer at the Board, and that he had the right to another hearing by a Veterans Law Judge who would make the decision on his appeal. After initially requesting another hearing, in March 2013, through counsel, the Veteran withdrew his request for another hearing. The appeal is REMANDED to the RO. REMAND In its decision the Court held that the VA opinion, obtained in June 2009, was too speculative to be adequate and that the Board's reliance on the opinion to determine that the Veteran was capable of obtaining substantially gainful employment therefore resulted in an inadequate statement of reasons and bases. The Court stated that should the Board determine that there was not enough medical evidence to make the determination of unemployability the Veteran should be provided a new examination. In March 2013, the Veteran submitted an assessment by a vocational expert, D. Palmer, MS, CRC, CDMS, who concluded that the Veteran was unable to obtain or to retain gainful employment in a sedentary position and that the service-connected disability would prevent the Veteran from following a substantially gainful occupation because the Veteran had to reduce his workable hours and had declined work assignments. The Veteran waived initial consideration of the vocational assessment by the RO. While this evidence supports the Veteran's claim, the Board determines that there is insufficient evidence to determine whether the Veteran's service-connected psychiatric disorder alone results in total occupational and socially impairment under the criteria for a schedular 100 percent rating under Diagnostic Code 9432. The also Board determines that there is insufficient evidence to determine whether the combination of the Veteran's service-connected disabilities of bipolar disorder (rated 70 percent) and psoriasis (rated 10 percent) render the Veteran unable to secure or to follow a substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA psychiatric examination to determine whether the Veteran is totally occupational and socially impaired under the criteria for a schedular 100 percent rating under Diagnostic Code 9432. The Veteran's file must be made available to the examiner for review. 2. Afford the Veteran a VA examination by a physiatrist or a physician with similar expertise to determine: Whether the combination of the Veteran's service-connected disabilities of bipolar disorder (rated 70 percent) and psoriasis (rated 10 percent) render the Veteran unable to secure or to follow a substantially gainful employment, considering the Veteran's employment history and educational and vocational attainments? The Veteran's file must be made available to the examiner for review. 3. On completion of the development, adjudicate the claims. If any benefit sought is denied, then furnish the Veteran and his attorney 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). _________________________________________________ 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).