Citation Nr: 1327349 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-41 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and J.K. ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from July 1945 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal of ratings decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In October 2012, the Veteran and J.K. testified before the undersigned Veterans Law Judge during a hearing held at the RO. A transcripts of the hearing has been associated with the claims file. The Board remanded the Veteran's claim in December 2012 to the RO via the Appeals Management Center (AMC) for additional development and adjudicative action. The case has now been returned to the Board for appellate review. 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 Regrettably, an additional remand is needed in this case. Review of the record indicates that a remand is required to obtain an outstanding VA medical examination report. In a February 26, 2013 VA examination report, an audiologist provided the opinion that it was more likely than not that the Veteran is not unemployable due to his service-connected hearing loss. The audiologist went on to say that he had "nothing new to add to this opinion since previously stated on the previous evaluation on February 11, 2013." The Board notes, however, that the February 11, 2013 examination report has not been associated with the record. As this examination report is relevant to the claim on appeal, it is necessary in adjudicating the Veteran's claim. Therefore, the RO or the AMC must obtain and associate with the record a copy of the February 11, 2013 VA audiology examination report before the Board can proceed with the appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before VA, even where they are not actually before the adjudicating body). Additionally, the Board finds that a remand is warranted in order to comply with the December 2012 remand directives. In the December 2012 remand, the Board directed that a medical opinion be obtained regarding whether the Veteran's service-connected disabilities, separately and collectively, are severe enough to prevent his gainful employment. In February 2013 and May 2013, the RO obtained opinions regarding whether the Veteran's service-connected bilateral hearing loss prevented his employment. In April 2013, a VA examiner provided an opinion as to whether the Veteran's skin disabilities (eczema, residuals scars on the head and face from basal cell and squamous cell carcinoma, and residuals scars of the head and face from basal cell and squamous cell carcinoma ) and the medications taken for his skin conditions impact his ability to work. However, neither examiner addressed whether the Veteran's disabilities taken together prevent his gainful employment. Thus, the claim must be remanded in order to obtain an additional medical opinion that addresses this issue. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Obtain any outstanding VA and private medical records identified by the Veteran as relevant to the claim on appeal. 2. Obtain a copy of the February 11, 2013, VA audiology examination report. If this examination report cannot be obtained, a written explanation of the actions taken to obtain the report must be added to the record. 3. Thereafter, forward the Veteran's claims file and any relevant records contained in Virtual VA that are not included in the claims file to an appropriate examiner to obtain a medical opinion as to whether the Veteran's service-connected disabilities preclude the Veteran from securing or maintaining gainful employment. The Veteran need not be reexamined, unless the examiner determines that an examination is necessary. In the event that the Veteran is provided an additional examination, any indicated tests and studies should be performed. Following a review of the evidence of record and the Veteran's competent lay statements, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected disabilities, taken together, are severe enough to prevent him from gainful employment. In providing the requested opinions, the examiner must consider any additional medical opinions of record. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. After completing the above actions, conduct any other notice or development deemed necessary. 4. Then, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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. 2009). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2009).