Citation Nr: 1322247 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 07-19 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1960 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, mailed to the Veteran in December 2006, which denied entitlement to a TDIU. The Veteran was scheduled to testify via videoconference before a Veterans Law Judge, seated at the Board's Central Office in Washington, D.C., in November 2007. However, it appears that the Veteran did not report to the hearing, and has not provided an explanation for his absence. As such, the Veteran's request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.703. In November 2010 and December 2012, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. The case has now been returned to the Board for further consideration. However, unfortunately, another remand is required. REMAND The Veteran is service-connected for low back strain, rated as 40 percent disabling; fracture of the mandible, rated as 30 percent disabling; diabetic neuropathy of the left lower extremity, rated as 20 percent disabling; diabetic neuropathy of the right lower extremity, rated as 20 percent disabling; prostate cancer, rated as 20 percent disabling; diabetes mellitus type II, rated as 20 percent disabling; nasal fracture, rated as 10 percent disabling; bilateral retinopathy, rated as 10 percent disabling; diabetic neuropathy of the left upper extremity, rated as 10 percent disabling; diabetic neuropathy of the right upper extremity, rated as 10 percent disabling; and, erectile dysfunction, rated as 0 percent disabling. His combined rating is 90 percent. Pursuant to the Board's remand, the Veteran underwent a January 2013 VA examination to assess whether the Veteran's service-connected disabilities rendered him unemployable. Since the examination was performed, the Veteran has been granted an increased rating for his diabetes mellitus and service connection has been granted for peripheral neuropathy of the upper extremities and diabetic retinopathy. Thus, the Veteran's disability picture has changed markedly. Therefore, an additional examination and opinion is needed to determine what impact, if any, this additional disability has in terms of his ability to maintain employment. Also in this regards, the Veteran reports that his Oxycodone medication, taken for service-connected impairment, affects his ability to concentrate and complete paperwork. The VA examiner should comment on the effects of such medication on his ability to maintain employment to include sedentary employment. Finally, several rating decisions rendered in 2009 and 2010 were recently added to Volume 4 of the paper claims file. These decisions were apparently missing at the time of previous VA adjudications and raises the possibility that there may be an outstanding temporary file. The AMC must investigate whether there are any outstanding temporary files and, if located, they must be permanently associated with either the paper or virtual file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take efforts to determine whether an additional claims folder exists that contains any additional information concerning the Veteran's claims, specifically between September 2008 and September 2010. This information should be permanently associated with the VA paper or virtual file. 2. The AMC should contact the Veteran to obtain the names and addresses of all medical care providers, VA and non-VA, who treated him for his service-connected disabilities. After the Veteran has signed any appropriate releases, those records should be obtained and associated with the claims folder. The RO/AMC should obtain any VA treatment records that date from February 2012. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After consolidating any additional information in the claims file, the Veteran should be scheduled for an appropriate VA evaluation to assess his ability to maintain employment, especially in light of his former employment as a security investigator. The examiner should take into consideration all of his service connected disabilities as well as the effect of the Veteran's medication regime. And to facilitate providing this additional comment, it is imperative the designated examiner review the claims file for the relevant medical and other history. This review includes considering this remand and the Board's prior remand. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, VA should readjudicate the Veteran's claim on appeal, in light of all pertinent evidence and legal authority. 5. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ 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).