Citation Nr: 1320337 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-11 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from April 1981 until retiring in April 2001. This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In his April 2009 substantive appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board. He subsequently withdrew this hearing request, however, in a statement in support of claim (VA Form 21-4138) received in October 2010 from his representative. See 38 C.F.R. § 20.704(e) (2012). He asked that the RO, instead, go ahead and forward his file to the Board for a decision. As requested, the Board subsequently issued a decision in January 2011 denying another claim he also had appealed - for a rating higher than 40 percent for varicose veins (varicosities) of his right lower extremity. However, the Board increased the rating for the varicosities of his left lower extremity from 20 to 40 percent. And as concerning this remaining claim for a TDIU, the Board, instead, remanded this claim to the RO via the Appeals Management Center (AMC) for a medical opinion concerning whether his service-connected disabilities render him unemployable - meaning incapable of obtaining and maintaining substantially gainful employment versus employment that would be considered just marginal in comparison. VA compensation examiners provided opinions in March 2011 and February 2012. But since more explanation was needed, the Board again remanded this TDIU claim to the RO via the AMC for still further comment in August 2012. Additional VA medical opinions resultantly were obtained in August 2012 and March 2013; however, the AMC continued to deny this claim (as reflected in an April 2013 supplemental statement of the case (SSOC)) and returned this claim to the Board for further appellate consideration. But because even further development is required, the Board is again remanding this TDIU claim to the RO via the AMC. There is one other preliminary point also worth mentioning. In his September 2008 notice of disagreement (NOD), the Veteran asserted that his nonservice-connected lower back problems were exacerbated due to lack of exercise because of his leg conditions. He submitted with his NOD an August 2008 MRI of his lumbar spine. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310(a). The United States Court of Appeals for Veterans Claims (Court/CAVC) has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). So secondary service connection is permissible if the service-connected disability either causes or is aggravating the additional condition. 38 C.F.R. § 3.310(b). The Veteran is presently service connected for disabilities affecting his legs - specifically, status post right fibula/tibia fracture with residual cortical deformity, varicosities of the right and left lower extremities, osteoarthritis of the right knee, and scars on the right lower extremity. Insofar as the September 2008 NOD includes his assertion that he has a low back disorder that has been worsened (i.e., aggravated) by his service-connected leg disabilities, this statement raises a claim of entitlement to service connection for a low back disorder as secondary to the service-connected disabilities affecting his legs. This additional claim for service connection for a low back disorder as secondary to the service-connected disabilities of his legs, although raised by the record, has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). The Board therefore does not presently have jurisdiction over this additional claim so is referring it to the RO as the AOJ for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). However, this additional claim nonetheless will be referenced in the remand below as it is inextricably intertwined with the claim for a TDIU. REMAND The Board sincerely regrets the additional delay that inevitably will result from this additional remand of this TDIU claim, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. The Veteran has a 40 percent rating for the service-connected varicosities of his left lower extremity as well as a 40 percent rating for those of his right lower extremity. He also has a 30 percent rating for status post right fibula/tibia fracture with residual cortical deformity, a 10 percent rating for osteoarthritis of his right knee, a 10 percent rating for scars on his right lower extremity, a 10 percent rating for bilateral pes planus (flat feet) and bilateral plantar calcaneal spur, a 0 percent (i.e., noncompensable) rating for status post right fifth metacarpal fracture with Dupuytren's contracture, and a 0 percent rating for left ear hearing loss. The combined rating, therefore, is 90 percent when considering the bilateral factor. 38 C.F.R. §§ 4.25, 4.26 (2012). As the Board has previously explained, he has at least one service-connected disability rated as at least 40-percent disabling and additional disability to bring his combined rating to at least 70 percent, meaning he satisfies the threshold minimum percentage requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU, that is, without having to resort to the special extra-schedular provisions of § 4.16(b). According to his VA Form 21-4192, the Veteran was employed as an instructor at a field service company from June 2002 until March 2008, when he was terminated for breaking company policy pertaining to internet use. He claims he has not had a job since. In further support of his claim, he submitted two statements from his private physician, Dr. W.B., dated in September 2008 and November 2009, attesting to unemployability. Specifically, Dr. W.B. opined that the Veteran's diagnoses of arthritis in his low back, severe bilateral varicose veins and venous stasis changes in both legs "limit his ability to continue permanent or temporary employment, especially when work requires frequent travel and standing." However, Dr. W.B. did not address whether the Veteran is incapable, as opposed to just "limited," in obtaining and maintaining substantially gainful employment when only the service-connected disabilities are considered, which do not currently include the low back disorder mentioned. However, as discussed in the INTRODUCTION, the claim for service connection for a low back disorder, as secondary to the service-connected leg disabilities, is being referred to the RO for appropriate action. In Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Court held that the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). Accordingly, in January 2011 the Board remanded the claim for a TDIU to obtain a medical opinion concerning whether the Veteran is unemployable on account of his service-connected disabilities. He resultantly had a VA general medical examination in March 2011 to assess the severity of the several service-connected disabilities affecting his lower extremities (his varicosities, right fibula/tibia fracture with residual cortical deformity, right knee osteoarthritis, scars on his right lower extremity), also his feet (the bilateral pes planus (flat feet) and bilateral plantar calcaneal spur), and his right hand (the status post right fifth metacarpal fracture with Dupuytren's contracture). At the conclusion of her evaluation, including review of the claims file (C-file), this VA compensation examiner determined the Veteran's service-connected conditions of varicosities of the lower extremities and the right tibia-fibula fracture with residual cortical deformity, osteoarthritis of the right knee, bilateral pes planus and bilateral plantar calcaneus spur and right fifth metacarpal fracture with Dupuytren's contracture affected his ability to obtain physical employment involving walking more than one-fourth of a mile and standing more than 10 minutes, bending, climbing, lifting, and all strenuous physical activity. She added, however, these service-connected conditions did not have any effect on sedentary employment. The Veteran also had a VA audio examination in February 2012 concerning his remaining service-connected disability of left ear hearing loss, and this additional VA compensation examiner determined this unilateral hearing loss would not affect the Veteran's employability, so neither in a physical nor sedentary setting. Thus, the VA general medical examiner concluded the several service-connected disabilities affecting the Veteran's lower extremities, feet, and right hand likely preclude him from engaging in employment that is physically demanding, but not sedentary employment, whereas the VA audio examiner denied that the left ear hearing loss precludes either type of employment. However, as the Board discussed in its August 2012 remand, additional medical comment was needed as to whether the seemingly remaining possibility of sedentary-type employment was, in actuality, a realistically viable option for the Veteran considering his level of education, prior work experience and training. As already alluded to, his prior work experience, until his unexpected termination in March 2008 for reasons unrelated to his service-connected disabilities, was as an instructor at a field service company, and he claims he has not had a job since, so not in any other capacity. The Board went on to discuss in the August 2012 remand how the Board must assess whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a TDIU. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). And while the regulations do not define "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." And in this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See, too, Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Moreover, the degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is indeed incapable of performing the physical and mental acts required by employment, and is not based solely on whether he is unemployed or has difficulty obtaining employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. See, too, 38 C.F.R. §§ 4.1, 4.15. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability, especially when the Veteran has ratings or a combination of ratings that are in the higher end of the rating spectrum. Thus, in light of the above, the Board again remanded the claim in August 2012 to obtain an additional medical opinion. The March 2011 VA general medical examiner was asked to provide supplemental comment concerning whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining employment that would be considered "substantially gainful" versus "just marginal" in comparison. In particular, since this examiner seemingly already had conceded that the Veteran is incapable of returning to the workforce and engaging in any employment that would be physically demanding, but still had the capability to do sedentary employment, she was instructed to consider and comment on whether this is indeed a realistic option for him given his level of education, prior work experience and training. As the Board highlighted for the examiner, in Hatlestad v. Brown, 5 Vet. App. 524 (1993), the Court explained that it is a subjective, not objective, test of employability. Thus, the examiner was asked to consider the claim in the context of the Veteran's individual circumstances and not simply the average person. In August 2012, the March 2011 VA examiner reviewed the claims file and stated that the guidance she had received stated that examiners are to answer only with a statement regarding the functional impact/impairment that the service-connected conditions have on the Veteran's physical and sedentary employment, and examiners were not to opine on the ability to work or not to work, nor were they to provide statements regarding the ability to obtain or sustain gainful versus marginal employment. She added that the rationale behind such guidance was that "substantially gainful employment" is a legal term and required current substantial gainful activity (SGA) levels, which were legally defined and, without such knowledge, an examiner was unable to comment on the ability to perform substantial gainful activity. The March 2011 examiner went on to state that, in order to properly determine whether an impaired individual can or cannot perform substantial gainful activity, one needed to know their physical limitations (which was clearly provided in regard to the Veteran's service-connected disabilities) and a vocational analysis was required. She stated that such analysis would include comparing available jobs in the economy to the individual's particular skills, training, education, and other factors, which she stated was beyond her expertise. The examiner did go on to summarize the Veteran's functional impairment and opined that his service-connected conditions of varicosities of the lower extremities and the right tibia-fibula fracture with residual cortical deformity, osteoarthritis of the right knee, bilateral pes planus and bilateral plantar calcaneus spur and right fifth metacarpal fracture with Dupuytren's contracture affected his ability to obtain physical employment if involving lifting over 50 pounds, walking more than one-fourth of a mile, and standing more than 10 minutes. She added that he would be unable to do repetitive knee bends, crawl, climb, kneel or squat; however, his service-connected conditions did not have any effect on sedentary employment. Because the March 2011 VA examiner indicated that it was beyond her expertise to provide the opinion requested by the Board, the AMC sought another opinion from a different examiner. In March 2013, another examiner reviewed the claims file and opined that the Veteran's physical limitations, alone, did not make him unemployable in a sedentary position. He stated that none of the Veteran's service-connected conditions, either alone or cumulatively, caused a disability that precluded meaningful use of his other mental and physical capabilities. This examiner added that none of the evidence reviewed showed relinquishing of the Veteran's employment due to inability or difficulty performing job duties. This examiner concluded by stating that, based on the available information about physical limitations and the Veteran's capabilities as an instructor, the examiner was unable to find the conditions stated as unemployable. Unfortunately, the additional medical opinions obtained since the August 2012 remand do not adequately address the questions posed in that remand. Indeed, the March 2011 VA examiner indicated that responding to such questions was beyond her expertise. And while the March 2013 VA examiner found that the Veteran was not unemployable in a sedentary position, this opinion appears to have been based merely on the fact that he did not leave his prior employment due to inability or difficulty performing job duties. However, the question for consideration is not whether he stopped working due to his service-connected disabilities, but rather, whether his service-connected disabilities preclude him from reentering the workforce and obtaining and maintaining employment that would be considered "substantially gainful" versus "just marginal" in comparison. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand Order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance." Id. See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). See, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002)). Here, though, there was not an acceptable level of substantial compliance. Accordingly, the Board finds that another remand is required to obtain an additional opinion. To this end, and has previously been suggested, he Veteran should be scheduled for a VA social and industrial survey to ascertain the impact of his service-connected disabilities on his ability to engage in substantially gainful employment in light of his work history and level of education. To reiterate, he worked as an instructor from June 2002 to March 2008. He indicated on his TDIU application, VA Form 21-8940, that he had completed high school. In addition to the need for this additional opinion, the record reflects that there is outstanding evidence which is potentially pertinent to this claim for a TDIU. In this regard, the Veteran reported in an April 2013 statement that the Social Security Administration (SSA) had found that he became disabled in March 2008. While SSA records are not controlling on VA determinations, owing to the fact that these Federal agencies have different requirements insofar as when one is considered disabled, the SSA records may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records that, as here, are potentially relevant, VA must try and obtain the records before proceeding with the appeal. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). See also Lind v. Principi, 3 Vet. App. 493, 494 (1992). As the Veteran's SSA records have not previously been obtain and associated with the claims file for consideration, and may be pertinent to this TDIU claim on appeal, they should be requested. Additionally, the claims file reflects that, in May 2001, the Veteran filed a VA Form VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation. That same month, the RO sent him a letter advising him that his application for vocational rehabilitation had been reviewed and that entitlement to an evaluation for vocational rehabilitation was established because of the proposed pre-discharge service-connected disability rating. The RO advised him that he was eligible for evaluation by a counseling psychologist to determine his possible entitlement for entrance into the Vocational Rehabilitation and Employment (VR & E) program. The entitlement was to be determined by the counseling psychologist after he or she had performed an interview, possible vocational and/or aptitude testing, and taken previous training and/or work experiences into consideration. The RO stated that a Counseling, Evaluation, and Rehabilitation (CER) folder/file would be established and sent to a counseling psychologist in his area who would then notify him of his appointment. In October 2008, he filed another VA Form 28-1900. However, no VA vocational rehabilitation/CER file or folder has been forwarded to the Board. On remand, the AMC/RO should associate with the claims file the Veteran's vocational rehabilitation records or folder. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA also has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). In his May 2008 VA Form 21-8940, the Veteran reported that he had been treated for his varicosities of the lower extremities by Dr. W.B. In July 2008, the Veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), to enable VA to obtain treatment records from this physician. He stated that he had received treatment on July 31, 2003. In the area of the form provided to indicate the condition(s) for which treatment was provided, the Veteran wrote "check up." He added in the comments section that Dr. W.B. became his family Tricare doctor in July 2003 and he had seen her on other occasions, but he did not remember the exact dates. The RO did not request treatment records from this physician. Instead, the RO stated in the July 2008 rating decision that these records were not requested because the form was incomplete in that it did not show the specific conditions for which the Veteran was treated. Nevertheless, the Board points out that the Veteran had previously reported that Dr. W.B. had treated him for varicosities of the lower extremities. As indicated above, this physician submitted statements regarding the Veteran's employability in September 2008 and November 2009. In her September 2008 statement, Dr. W.B. reported that the Veteran had been her patient for three years. As treatment records from Dr. W.B. are potentially pertinent to the claim on appeal and have been adequately identified by the Veteran they should be requested on remand. Finally, as noted in the INTRODUCTION, a claim for service connection for a low back disorder as secondary to the service-connected disabilities affecting the legs is being referred to the RO for appropriate action. Given that the outcome of this additional claim could affect the claim for a TDIU, the Board finds that the claim for a TDIU is "inextricably intertwined" - in turn requiring collective consideration of these claims, so together, rather than piecemeal. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Therefore, appellate review of the claim for a TDIU must be deferred until the above-described claim, which has been raised by the Veteran, is adjudicated. Accordingly, this TDIU claim is again REMANDED for the following additional development and consideration: 1. Conduct all necessary notice, development and adjudication of the claim for service connection for a low back disorder as secondary to service-connected disabilities of the legs. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected disabilities. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for treatment records from Dr. W.B. (as identified in the July 2008 VA Form 21-4142) as well as any additional records identified by the Veteran. The amount of efforts needed to be expended in obtaining records identified depends on who has custody of them. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) controls if they are. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 38 C.F.R. § 3.159(e)(1). 3. Obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits as well as copies of all medical records underlying those determinations. 4. Associate with the claims file the Veteran's VA vocational rehabilitation/CER file or folder. 5. After the above development has been completed, and the claim for service connection for a low back disorder as secondary to service-connected disabilities of the legs has been adjudicated, afford the Veteran a VA social and industrial survey for the purpose of ascertaining the impact of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful (as opposed to just marginal) employment. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history should be obtained. In conjunction with the survey, the claims folder must be made available to the examiner for review of the relevant history. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner must address the likelihood (very likely, as likely as not, or unlikely) that the Veteran's service-connected disabilities, considered together, would preclude his obtaining and retaining substantially gainful employment consistent with his education and occupational experience. As discussed above, the record reflects that the Veteran worked as an instructor from June 2002 to March 2008 and has completed high school. The examiner is asked to consider the definitions of "substantially gainful" versus "marginal employment" as discussed above in the body of this remand. The examiner is further advised that the claim must be considered in the context of the Veteran's individual circumstances, not whether an average person would be capable of obtaining and retaining substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524 (1993). Hence, the "I" for "individual" in the TDIU acronym. If it is the examiner's opinion that the Veteran's service-connected disabilities, considered together, do not render him unemployable, he or she should suggest the type or types of employment in which the Veteran would be capable of engaging with his service-connected disabilities, given his skill set and educational background. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. Conduct any other appropriate examination and development deemed necessary. Then readjudicate the claim for a TDIU in light of this and all other additional evidence. If this claim is not granted, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).