Citation Nr: 1320333 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-17 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Allan T. Fenley, Attorney ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1979 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying entitlement to the benefits sought on appeal. In September 2012, the Board denied claims for entitlement to higher disability ratings for peripheral neuropathy of the bilateral upper and lower extremities and remanded the claim for entitlement to a TDIU for further development. Accordingly, the claims for entitlement to higher disability ratings for peripheral neuropathy of the bilateral upper and lower extremities are no longer are on appeal before the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Unfortunately, further development is required on the Veteran's claim for entitlement to a TDIU. As discussed in the Board's September 2012 remand order, the remaining dispositive consideration in this claim is whether the Veteran is incapable of securing and maintaining substantially gainful employment due to his service-connected disabilities. Consequently, the Board directed the RO to obtain a medical opinion as to whether the Veteran is incapable of securing and maintaining substantially gainful employment due to one or more of his service-connected disabilities, which are as follows: residuals of cold injury right and left feet, rated at 30 percent each; residuals of cold injury, right and left hands, rated at 20 percent each; peripheral neuropathy, right and left lower extremities, rated at 20 percent each; and peripheral neuropathy, right and left hands, rated at 10 percent each. On remand, separate medical opinions were obtained on the occupational effects of the Veteran's cold injury residuals and peripheral neuropathy. However, there is no opinion of record which considers the occupational effect of these disabilities together, and, furthermore, the opinion provided on the occupational effects of the Veteran's peripheral neuropathy is inadequate as it fails to provide a clear answer to the question of whether the Veteran is incapable of securing and maintaining substantially gainful employment. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (an examination that does not describe the disability in sufficient detail to facilitate a fully informed evaluation is inadequate). Consequently, as the medical opinions obtained in February 2013 are not adequate to resolve the issue on appeal, the claim for entitlement to a TDIU must be remanded for a supplemental medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). This opinion must clearly state the effect of the Veteran's service-connected disabilities on his ability to work, considered both separately and together, and the examiner must provide a thorough rationale for the conclusion reached and identify the precise facts relied upon in reaching that conclusion. Accordingly, the case is REMANDED for the following action: 1. Obtain an additional VA medical opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. In offering this opinion the examiner must consider the degree of interference with ordinary activities, including capacity for employment caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected physical or psychiatric condition. The examiner must also comment upon whether the Veteran is equally precluded from sedentary and more physically strenuous occupations. The examiner should include in the examination report the rationale for any opinion expressed. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. 2. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 3. The RO should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the RO should readjudicate the claim for a TDIU based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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 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). _________________________________________________ K. Parakkal 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).