Citation Nr: 1331034 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-27 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to September 1979. In an April 18, 2011 decision, the Board of Veterans' Appeals (Board) denied entitlement to a disability rating in excess of 30 percent for recurrent left anterior shoulder dislocation, and determined that entitlement to a TDIU had been raised as an element of the increased rating claim, remanding the claim for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In a December 2011 rating decision, the Buffalo, New York Regional Office (RO) denied entitlement to a TDIU; continued the 40 percent rating assigned to recurrent right anterior shoulder dislocation, post operative; and, continued the 30 percent rating assigned to recurrent left anterior shoulder dislocation. In December 2011, the RO also issued a supplemental statement of the case with regard to the issues of entitlement to a TDIU; and increased ratings for recurrent right anterior shoulder dislocation, and post-operative, currently evaluated as 40 percent disabling; and, entitlement to an increased rating for recurrent left anterior shoulder dislocation, currently evaluated as 30 percent disabling. There is no apparent reason why the shoulder disabilities were listed. There is no indication that the Veteran expressed disagreement with the December 2011 rating decision which denied entitlement to an increased rating for recurrent right anterior shoulder dislocation, thus such issue is not in appellate status. 38 C.F.R. §§ 20.200, 20.201. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND This matter was remanded in April 2011 to obtain an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In September 2011, the Veteran underwent a VA examination. The examiner did not provide the specific responses sought in the Board remand. She checked boxes on the examination report form indicating that the "claimed condition" was not service connected with accompanying reasoning that the Veteran was still able to perform his paper route. This was an apparent attempt to say that the Veteran was capable of gainful employment despite his service connected disabilities. It is not apparent; however, whether the Veteran's paper route constitutes gainful employment or was merely marginal. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to report his annual earnings from employment during the period since 2006; and the approximate number of hours per week he has worked. 2. Return the claims folder, including this remand, to the April 2011 VA examiner for an opinion as to whether his service-connected disabilities (recurrent right anterior shoulder dislocation, post operative, rated 40 percent disabling, and recurrent left anterior shoulder dislocation, rated 30 percent disabling) COMBINE to prevent him from obtaining and keeping employment for which his education and occupational experience would otherwise qualify him. The examiner should provide an opinion as to whether the Veteran's paper route would be considered marginal (e.g. sheltered). If the Veteran's reported annual earnings are less than $11,170, it should be considered marginal. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities in combination would be sufficient to preclude him from obtaining or retaining substantially gainful employment for which his education and occupational experience would otherwise qualify him, either individually or collectively. The examiner must provide reasons for the opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. If the April 2011 VA examiner is unavailable, please refer the case to a physician with appropriate expertise for the requested opinion, and another VA examination should be scheduled if deemed necessary. 3. The RO/AMC should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 5. If any benefit on appeal remains denied, the RO/AMC should issue a supplemental statement of the case. Then, the case should be returned to the Board, if in order. The Veteran and his representative have 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). _________________________________________________ Mark D. Hindin 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).