Citation Nr: 1324967 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-13 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to the appellant's service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The appellant was on active duty from February 1978 to November 1978, and from April 1980 to June 1980. This matter originally came before the Board of Veterans' Appeals, hereinafter the Board, on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for his right knee disability and assigned a 10 percent evaluation. The matter was remanded in April 2012 and February 2013. Regrettably, the appeal is once again REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND The Board issued a February 2013 Remand in which it found that the AMC had not complied with the directives of the April 2012 Decision/Remand. Since the February 2013 Remand, the Appeals Team Coach correctly noted that the AMC is to do the Remand; and it sent the claims file to the AMC with instructions to comply with the directives of the Remand. It does not appear that anything has been done with the claims file since then. The April 2012 Remand directives (reiterated in the February 2013 Remand), still have not been substantially complied with. Accordingly, the case is REMANDED for the following action: 1. The AMC must the entire claims folder and ensure that all notification and development necessary to comply with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012) are fully complied with and satisfied as to the issue now on appeal. The claims folder must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issue on appeal. 2. The AMC should contact the appellant and ask that he identify all sources of medical treatment received since January 2012 for his service-connected disabilities and his nonservice-connected disorders, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. The AMC should specifically ask for the names and locations of all of the appellant's private care providers (if any). Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested and added to either the paper or electronic claims file. If requests for any private treatment records are not successful, the AMC should inform the appellant of the negative response so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2012). 3. The AMC should request that a social and industrial survey be undertaken by a social worker, in order to elicit and set forth pertinent facts regarding the appellant's medical history, education and employment history, and social and industrial capacity. The social worker who conducts this survey should identify those activities that comprise the appellant's daily routine. With regard to his employability, the appellant should be asked to provide the names and addresses of businesses where he has worked and or sought employment. Any potential employment opportunities should be identified. The claims folder must be made available to the social worker in conjunction with the survey as it contains important historical data. 4. The AMC should make arrangements with the appropriate VA medical facility for the appellant to be afforded a general medical examination to determine the nature, severity, and extent of all service-connected and nonservice-connected disabilities. All indicated tests or studies deemed necessary should be done. The claims file, this REMAND, and treatment records must be made available to, and be reviewed by, the examiner in connection with the appropriate examination. The examiner should perform any tests or studies deemed necessary for an accurate assessment. The examiner should give detailed clinical findings of any symptomatology found. Following examination, the examiner should opine whether it is at least as likely as not that the appellant's service-connected disabilities, without regard for any nonservice-connected conditions, preclude him from gainful employment. The examiner should be informed of the definition of marginal employment and that "substantially gainful occupation" does not include marginal employment. The examiner should consider the appellant's level of education, special training, and previous work experience, but not his age or the effects of any nonservice-connected disabilities. The examiner must provide a comprehensive report including complete rationale for all conclusions reached in a legible report. The examiner should specifically discuss the assertions made by the appellant concerning his unemployability and any past inconsistent or contradictory medical opinions previously given. If further testing or examination by specialists is required to evaluate the claimed disorder, such testing or examination is to be done before completion of the examination report. The results proffered by the examiner must reference the complete claims folders and it is requested that the results of the examination be typed or otherwise recorded in a legible manner for review purposes. 5. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report and social and industrial survey. If the reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998). 6. Thereafter, the AMC should readjudicate the issue now on appeal. The AMC is reminded that in evaluating whether a TDIU may be granted, it must make a specific determination as to whether the claim should be referred to the Director, VA Compensation and Pension, based on the granting or denying of a TDIU on an extraschedular basis. A discussion of whether it will refer the claim to the Director, VA Compensation and Pension, should be included in the supplemental statement of the case (SSOC). If the benefits sought on appeal remains denied, the appellant and his accredited representative should be provided an SSOC regarding the issues now on appeal. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The purpose of the examinations requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) his failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant 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). _________________________________________________ ERIC S. LEBOFF 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).