Citation Nr: 1336673	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO.  11-34 292	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION

The Veteran had active service from September 1986 to August 1990 and from January 1991 to January 1992.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

In April 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the record.

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

The Veteran appeals the denial of TDIU.  The Veteran is service connected for several disabilities to include residuals of open fracture right tibia and fibula, scars residuals of shell fragment wounds of the left lower extremity, deep scars, and residuals of shrapnel fragmentation wound, right lower extremity.  The Veteran is also service-connected for right ear chronic suppurative otitis media associated with the rupture of the right tympanic membrame.  He was afforded a VA examination in June 2010 to address his TDIU claim.  The VA examiner opined that the Veteran had some physical limitations but that he was capable of sedentary work.  

During his April 2013 hearing, however, the Veteran expressed that his disabilities have worsened.  Specifically, he reported increased pain and that he missed work often, including as due to his ear infections.  The Board also notes that the Veteran has been granted Social Security Disability benefits since the most recent rating decision.   

In light of the assertions set forth by the Veteran and the evidence of record, the Board finds that another VA examination is necessary before the issue of entitlement to TDIU can be decided.  In this regard, the Veteran has expressed difficulty maintaining employment because of his service connected disabilities.  While the June 2010 VA examiner found that the Veteran could perform sedentary work, the Board notes that the examiner did not address the cumulative effect of the Veteran's service connected disabilities on his ability to maintain employment.  He also has reported a worsening of his disabilities since his last VA examination which is over three years ago.  For proper adjudication of the claim, the Board finds that a remand is warranted. 

Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i) , VA will obtain an examination or an opinion if it is necessary to decide the claim.  To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to this claim and to ensure full compliance with due process requirements, a remand is necessary.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine if his service connected disabilities, either singly or cumulatively, render him unable to maintain and sustain substantially gainful employment.  The claims folder must be made available to the examiner for review. All findings should be reported in detail.  A complete rationale for all opinions should be provided.

2.  Following any additional indicated development, readjudicate the issue on appeal.  Should the claim be denied, issue an appropriate statement of the case to the Veteran and return the claim to the Board for final adjudication.


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. 2013).



_________________________________________________
K. MILLIKAN
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).