Citation Nr: 1426257 Decision Date: 06/10/14 Archive Date: 06/16/14 DOCKET NO. 10-20 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August 2001 to August 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In July 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. This case was last before the Board in February 2012, when it was remanded for further development. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veterans Benefits Management System (VBMS) systems to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In February 2012, the Board remanded the case to obtain an opinion as to whether the Veteran's service-connected PTSD prevents him from obtaining or maintaining substantially gainful employment. A review of the claims file indicates that an opinion was never obtained. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the RO failed to comply with the Board's February 2012 remand directives, the claim must be remanded, and a new VA examination with specific discussion of the impact of PTSD on employability is warranted. Also, it does not appear that the Veteran was provided all required notice regarding substantiating a claim for TDIU, and has not submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). A VA Form 21-8940 includes information helpful to the adjudication of a TDIU claim, as it includes current and recent employment history, as well as information on relevant factors such as education and vocational training. To ensure that there is sufficient information regarding these factors, a properly completed VA Form 21-8940, must be requested on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and provide him with notice of the elements and factors to be considered in a claim for TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). To facilitate his response, notice should include a specific request for a properly completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. After the above development is completed, schedule the Veteran for a VA examination with an examiner with the appropriate expertise to comment on the impact of the Veteran's PTSD on his occupational functioning, and how it impacts his ability to obtain and/or maintain substantially gainful employment. The claims file must be made available to and be reviewed by the examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD renders him unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and give them an appropriate time period in which to respond. The appellant 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). _________________________________________________ MILO H. HAWLEY 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).