Citation Nr: 1322422 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 12-04 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran and the Veteran's sister ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1977 to July 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified before a Decision Review Officer (DRO) in March 2011. In September 2012, he and his sister testified before the undersigned via videoconference from the Pittsburgh, Pennsylvania RO. Transcripts of both hearings are of record. The appeal is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he is unemployable due to his service-connected disabilities. Service connection is currently in effect for residuals of tuberculosis, rated as 60 percent disabling, and a right-eye disability, rated as 30 percent disabling; this results in a 70 percent combined rating. The Veteran's service-connected disabilities, therefore, meet the requisite schedular requirements for the consideration of entitlement to TDIU under 38 C.F.R. § 4.16(a) (2012). As the schedular requirements are met, the remaining question is whether the service-connected disabilities lead to the Veteran being unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). Prior to adjudication of this claim on the merits of this remaining question, unfortunately, a remand is required to ensure all due process is afforded to the Veteran and to allow VA to complete all necessary development. See 38 C.F.R. §§ 3.159, 19.9 (2012). At the time of his Board hearing before the undersigned, the Veteran testified that he was currently unemployed, having last worked at the YMCA; the Veteran indicated he stopped working at the YMCA due to his service-connected disabilities See Board Transcript, at 3-5. In March 2008, a supervisor at the YMCA completed a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits when the Veteran was still employed there. As the Veteran has now left the YMCA and indicated that he left employment at this business due to his service-connected disabilities, AMC should seek an updated VA Form 21-4192 from the YMCA as it may provide probative evidence as to the effect that the Veteran's service-connected disabilities played in him leaving employment. In addition, review of the Veteran's records located in Virtual VA reveals that the Veteran underwent a VA examination that evaluated eye disabilities in May 2013. The Veteran was last provided a Supplemental Statement of the Case (SSOC) in June 2012. As the Board must evaluate the effect on employability of the Veteran's service-connected disabilities, and this new evidence contained in this VA examination report is pertinent to the effect of the service-connected right-eye disability, upon remand, the AMC should consider this evidence prior to issuing a new supplemental statement of the case. See 38 C.F.R. § 19.31 (2012). Lastly, the AMC should ensure that the continuing duty to assist the Veteran in substantiating his claim is met by obtaining any subsequently identified evidence, to include outstanding VA treatment records. See 38 C.F.R. § 3.159 (2012). The Board sincerely regrets the additional delay caused by this Remand. However, this action is necessary to ensure that all due process is met and all development of evidence is complete. Accordingly, the case is REMANDED for the following action: 1. Seek an updated VA Form 21-4192 from the YMCA. The claims file currently contains such a form completed in March 2008 which includes the contact information for this YMCA. 2. Ensure that the continuing duty to assist the Veteran in substantiating his claim is met by obtaining any subsequently identified evidence, to include outstanding VA treatment records. 3. Thereafter, the issue on appeal should be readjudicated. In re-adjudicating the appeal, the AMC should consider the May 2013 VA eye examination currently contained in the Veteran's Virtual VA file. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a SSOC and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of his appeal. 38 C.F.R. § 20.1100(b) (2012).