Citation Nr: 1316667 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 06-27 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active military service from October 1964 to August 1966, including service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) from a rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2009, the Veteran testified before the undersigned Veterans Law Judge at Travel Board hearing. The hearing transcript is associated with the claims folder. When this case was previously before the Board in February 2013, it was remanded for additional procedural and evidentiary development; it has since been returned for further appellate action. Unfortunately, the directives of the February 2013 remand were not completed prior to recertification of the appeal, thereby necessitating another remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran is currently in receipt of service-connected compensation benefits for increased ratings for the residuals of shell fragment wounds (SFWs) of the left lower leg, left thigh, and right lower leg. He contends that such disabilities render him unemployable and that he is therefore entitled to a total disability rating. See 38 C.F.R. § 4.16 (2012). As noted in the Introduction, the Board previously remanded this appeal such that the Agency of Original Jurisdiction (AOJ) might complete various evidentiary and procedural development that would aid the Board in its determination as to whether the Veteran's disabilities render him unable to obtain and follow substantially gainful occupation. As discussed immediately hereafter, there has not been substantial compliance with the Board's remand directives and another remand is therefore necessary to complete the outstanding development. See Stegall. First, the Board directed the AMC/RO to address any new service connection claims that could impact the TDIU determination. The Veteran submitted correspondence in August 2011, in which he stated that he was filing new claims for seven listed issues; however, all of the listed issues were previously denied in an August 2009 rating decision that became final. Therefore, the Veteran would have to submit new and material evidence to reopen these claims. In an October 2011 statement, the Veteran filed claims for service connection for diabetes mellitus, insomnia, and high blood pressure, all of which are new claims. In the November 2012 Informal Hearing Presentation (IHP), the Veteran's representative raised claims for service connection for posttraumatic stress disorder (PTSD) and a back disability; however, as noted above, these claims were previously denied in an August 2009 rating decision that became final. Unfortunately, a review of the claims file reveals that nothing has been done as of the date of this remand in regard to the pending claims to reopen. The Board also directed the AMC/RO to obtain a VA examination and opinion which considers the impact of the Veteran's overall service-connected disability picture on his occupational functioning. To date, there have been a number of VA examinations, including two VA examinations in March 2013, which discuss the functional impact of each of the Veteran's service-connected disabilities individually. However, for purposes of entitlement to TDIU, the focus is on the entire disability picture, and there still has been no opinion obtained regarding the Veteran's employability which considers the combined functional impact of his service-connected disabilities and whether those disabilities render him unable to secure or follow a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should address any new service connection claims raised by the Veteran (as cited above) that could impact the TDIU termination (see Veteran's statements submitted in August and October 2011 and the second page of the IHP dated November 2013). A separate rating action should be issued. These new claims are not before the Board at this time. If claims of service connection are granted, they should be addressed within the examination cited below. The Veteran should also be informed that this new rating action, if unfavorable, will not be before the undersigned unless it is properly appealed to the Board. 2. Schedule the Veteran for an appropriate VA medical examination to determine the severity of impairment caused by his service-connected disabilities and whether they render him unable to secure and follow a substantially gainful occupation. The relevant documents in the claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner(s) should review the results of any testing prior to completion of the report. The examiner should specifically state whether the Veteran's service-connected disabilities, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. A complete rationale should be provided for all opinions expressed in the report. 3. Thereafter, the RO/AMC should review the record to ensure that the foregoing requested development has been completed. In particular, the RO/AMC should review the examination/opinion report(s) to ensure that they are responsive to and in compliance with the directives of this remand and if not, the RO/AMC should implement corrective procedures. See Stegall. 4. Then, readjudicate the Veteran's claim on appeal with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claim remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of his claim, as the consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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). _________________________________________________ JOHN J. CROWLEY 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).