Citation Nr: 1334168 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-19 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from August 1961 to August 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision by the Department of Veterans Affairs (VA) Muskogee, Oklahoma Regional Office (RO). The Board remanded this matter for further development in March 2013. In November 2011, the Veteran testified at a hearing at his local RO before the undersigned Veterans Law Judge, and a transcript of the proceedings is of record. In July 2013, the Veteran submitted additional evidence that was not reviewed by the RO. However, he waived RO consideration of the additional evidence, permitting the Board to consider such records in the first instance. See 38 C.F.R. § 20.1304(c) (2012). Hence, the additional evidence is being considered. 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 By way of background, the Veteran is service connected for a psychiatric disability, rated 30 percent disabling; a right foot disability rated as 20 percent disabling; a low back disability evaluated as 20 percent disabling; tinnitus evaluated as 10 percent disabling; a right ankle disability, a right knee disability, and a left knee disability each evaluated as 10 percent disabling; a left foot disability evaluated as 10 percent disabling; and for hearing loss evaluated as non-compensably disabling. His combined disability evaluation is 80 percent. The evidence of record reflects that the Veteran has been self-employed as a barber since 1968. He indicated in July 2013 that he earned $7,232 in 2012 and that he works 20 hours per week. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court in Stegall has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. Thus, while the Board regrets the additional delay in this case, for the reasons discussed below, the case must be returned to the AOJ. In March 2013, the Board remanded the TDIU claim in part to obtain a VA medical opinion as to whether the Veteran's service-connected disabilities either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. The examinations conducted in connection with this only expressed opinions based on the impairments caused by the Veteran's disabilities individually. An opinion was not obtained addressing whether the aggregate impairment that they cause would render the Veteran unable to secure or follow a substantially gainful occupation. This should be sought. Since the claims file is being returned it should be updated to include VA treatment records compiled since April 2013. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Associate, with the claims folder, physically or electronically, Muskogee VA Medical Center records pertaining to the Veteran that are dated since April 2013. 2. Obtain an opinion from a knowledgeable source as to whether the Veteran's service-connected disabilities, as a whole/in the aggregate, render him unable to secure or follow a substantially gainful occupation. The opinion provider is asked to review the Veteran's claims folder and note in his/her report that such a review was conducted. A complete rationale for the opinions and conclusions expressed, including consideration of the Veteran's particular education, training, and work history should be provided. If it is considered necessary to examine the Veteran to obtain the requested opinion, that should be arranged. 3. Then, readjudicate the Veteran's TDIU claim. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given the opportunity to respond. The case should then be returned to the Board, if in order. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).