Citation Nr: 1336569 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 07-29 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Eric A. Gang, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran and a witness ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to August 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Travel Board hearing was held in March 2010 before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. In July 2012, the Board denied a rating in excess of 60 percent for ankylosing spondylitis, but did not address whether the Veteran reasonably raised a TDIU claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In February 2013, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which requested that the Veteran's claim for a TDIU be addressed. The JMR specifically noted that the issue on appeal is limited to the TDIU claim. The issues of entitlement to service connection for multiple myeloma, secondary to radiation exposure, as well as a petition to reopen a claim of entitlement to service connection for degenerative disc disease with radiculopathy have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for any appropriate action. 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 In light of the deficiencies noted in the JMR, further development is necessary regarding the Veteran's TDIU claim. The parties to the JMR indicated that the Board failed to address whether the Veteran was incapable of obtaining and maintaining substantially gainful employment due to his service-connected ankylosing spondylitis. The parties agreed that the Board has a duty to consider the Veteran's reasonably raised claim for entitlement to a TDIU. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). In an October 2008 VA treatment record and in VA examination reports, the Veteran reported that his back disability has prevented him from being employed for the past 15-20 years. As such, the Veteran reasonably raised a TDIU claim in conjunction with the underlying increased rating claim for his ankylosing spondylitis, and additional development is necessary regarding the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran corrective VCAA notice which informs him of the evidence necessary to establish a TDIU. 2. Forward a VA Form 21-8940 to the Veteran, and subsequently forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employers listed on the Veteran's submitted VA Form 21-8940. 3. If the Veteran is unemployed (or marginally employed), then he should be scheduled for any additional VA examinations required to address whether it is at least as likely as not that his service connected disorder(s) alone render him unable to secure and maintain substantially gainful employment. Any examination conducted must describe any functional impairment and the impact of the service connected disorder on physical and sedentary employment. 4. Then, adjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the AOJ should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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). _________________________________________________ J. K. BARONE Acting 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).