Citation Nr: 1313968 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 04-44 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from January 1971 to December 1972 and from January 1973 to January 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran requested a hearing before the Board. A Veterans Law Judge who is no longer employed by the Board conducted the requested hearing in May 2009. A transcript is associated with the claims file. The Veteran was offered the opportunity to have an additional hearing; however, in February 2013, the Veteran declined this opportunity. This claim was denied in a January 2012 Board decision. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims. In July 2012, the Court granted a Joint Motion to vacate the part of the Board's decision denying the claim for TDIU and remanded the matter for further action. The issues of entitlement to service connection for glaucoma as secondary to service-connected hypertension and entitlement to a separate and/or increased rating for hypertension have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See January 2011 statement and May 2009 BVA Hearing Transcript. Therefore, the Board does not have jurisdiction over them and they are REFERRED to the AOJ for appropriate action. 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. REMAND The Veteran seeks entitlement to TDIU. He asserts his service-connected disability precludes him from maintaining substantial employment. He is currently service connected for focal glomerulosclerosis with hypertension and status post myocardial infarction, rated as 60 percent disabling. The Board finds a remand is necessary. The Veteran was afforded a VA examination in May 2011, during which the VA examiner opined that the Veteran's status post myocardial infarction made him unable to perform any physical exertion. It has been almost 2 years since this VA examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time). As such, the Board finds the issue of entitlement to TDIU should be reconsidered and a medical opinion should be obtained based on the severity of the Veteran's service-connected disability. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated treatment records. 2. Schedule the Veteran for a VA examination by a qualified physician to ascertain the impact of his service-connected disability on his unemployability. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner should opine as to whether it is at least as likely as not (50 percent probability), less likely than not (less than 50 percent probability) or more likely than not (more than 50 percent probability) that the Veteran's service-connected disability (focal glomerulosclerosis with hypertension and status post myocardial infarction) renders him unable to obtain and maintain substantially gainful employment consistent with his employment history, educational attainment, and vocational experience. The examiner should consider the Veteran's level of education, special training, and previous work experience, but should not consider his age or the impairment caused by his nonservice-connected disabilities. A complete rationale for all opinions expressed must be provided in the examination report. 3. After all of the above actions have been completed and the Veteran and his representative have been given adequate time to respond, readjudicate the claim. If the claim remains denied, issue to the Veteran and his representative a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).