Citation Nr: 1414904 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 05-21 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Daniel Smith, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied an increased rating for left and right knee disabilities. In September 2007 and again in January 2010, the Board remanded the case for additional development. In May 2012 the Board granted separate 10 percent ratings for bilateral slight knee instability and increased the rating for the left knee from 20 percent to 30 percent, as well as for the right knee from 20 percent to 30 percent, effective September 2010. The Board declined to adjudicate the issue of an inferred claim to a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), to the extent it did not address entitlement to TDIU benefits. A February 2013 order, granted the parties' joint motion for remand (JMR), to have the Board explain its decision not to adjudicate the issue of entitlement to a TDIU. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2007. A transcript of those proceedings has been associated with the Veteran's claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND In its May 2012 decision, the Board declined to adjudicate the TDIU issue based on a statement made by the Veteran that he did not believe consideration of his employability should be addressed by an orthopedic examiner; he believed it to be an invasion of his privacy to have his employability discussed in the context of his knee disabilities. The Board reasonably construed this statement as an intent not pursue the issue. However, in light of subsequent statements and actions it is clear that the Veteran does not intend to withdraw the issue from VA consideration. As the Veteran remains unemployed and wishes to pursue the issue, the Board has jurisdiction over the TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO, however, has not expressly adjudicated the issue of entitlement to a TDIU rating. Accordingly, the claim for a TDIU must be remanded to the RO for adjudication prior to consideration by the Board. Moreover, as there are conflicting opinions of record regarding the Veteran's ability to engage in meaningful employment under sedentary circumstances, the Board finds that a VA examination is necessary to ascertain whether his service-connected disabilities render him totally unemployable. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Send the Veteran and his representative a letter addressing VA's duty to notify with respect to his TDIU claim, to include a VA Form 21-8940. The letter must give the Veteran the opportunity to address how his service-connected disabilities impact his ability to work. 3. Schedule the Veteran for an examination with a vocational specialist, or other appropriate person, to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities (i.e., bilateral knee disabilities and tinnitus), either singularly or jointly, or the medications taken for such, taking into consideration his level of education, special training, and previous work experience, but not any impairment caused by nonservice-connected disabilities. The Veteran should be properly notified of the examination and of the consequences of his failure to appear. The claims file should be reviewed by the examiner. The examiner should describe what type of employment activities would be limited due to his service-connected disabilities. All opinions expressed should be accompanied by a supporting rationale. 4. Then readjudicate the issue on appeal. If any of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. The Veteran 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. 2013). _________________________________________________ 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) (2013).