Citation Nr: 1324714 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 05-25 408A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from April 1992 to November 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The record reflects that the Veteran failed to report for a hearing before a Veterans Law Judge, and has not explained his absence or requested to reschedule the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). Pursuant to an April 2012 remand, the Veteran's Social Security Administration (SSA) records have been obtained. In November 2012 the RO granted the Veteran service connection and a 50 percent rating for panic disorder without agoraphobia. In March 2013 the Board again remanded the Veteran's claim for TDIU. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. The virtual VA folder contains VA treatment records dated as recently as March 26, 2013. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The March 2013 Board remand instructed that the AMC afford the Veteran a VA examination and instructed that the VA examiner provide an opinion regarding whether the combination of all of the Veteran's service-connected disabilities precluded the Veteran from securing or following a substantially gainful occupation. Instead the Veteran was provided five separate examinations and five separate medical opinions were provided. None of the medical opinions took into account the combination of all of the Veteran's service-connected disabilities. Accordingly, there has not been substantial compliance with the Board's remand. In July 2013 the Board received additional pertinent evidence from the Veteran regarding his employment history and his earnings. As the case must be remanded, the RO or Appeals Management Center will have an opportunity to review the newly submitted evidence on remand. Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA treatment records regarding the service-connected disabilities dating from March 27, 2013 should be obtained and associated with the record. 2. After the above development is completed, have the general medical examiner or one of the other April 2013 nonpsychiatric examiners provide an opinion as requested in the earlier remand. The claims folder must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed and state that he/she has considered the five reports of VA medical examinations performed in April 2013. In particular, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran was unable to secure or follow a substantially gainful occupation, prior to July 23, 2010, as a result of his service-connected disabilities: a left foot disorder, a right ankle disorder, a right wrist disorder, a left ankle scar, a right ankle scar, a right wrist scar, and a left foot scar. Also, the examiner is asked to provide an opinion as to whether it is it at least as likely as not (a probability of 50 percent or greater) that the Veteran is unable to secure or follow a substantially gainful occupation, from July 23, 2010, as a result of his service-connected disabilities: a panic disorder without agoraphobia, a left foot disorder, a right ankle disorder, a right wrist disorder, a left ankle scar, a right ankle scar, a right wrist scar, and a left foot scar. [Note: service connection for panic disorder was granted effective July 23, 2010.] If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his work experience and educational background. 3. After completing the above, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) which includes review of all evidence received since the June 2013 SSOC and should be afforded the appropriate opportunity to respond. 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). _________________________________________________ S. S. TOTH 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).