Citation Nr: 1602455	
Decision Date: 01/21/16    Archive Date: 01/28/16

DOCKET NO.  09-14 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to July 1971.

In a January 2013 decision the Board remanded the TDIU issue to the RO via the VA Appeals Management Center (AMC) for additional development.

As discussed below, the AMC and RO did not satisfactorily fulfill the Board's remand instructions. The Court has ruled that the Board has a duty under law to ensure that the RO complies with remand orders of the Board or the Court. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board must remand the claim again for compliance with the remand instructions.


REMAND

The Veteran contends that his service-connected disabilities, including his hearing loss, make him unemployable. He has also reported a history of difficulty keeping jobs because of the effects of his service-connected posttraumatic stress disorder (PTSD). 

VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of disability ratings for service-connected disabilities. 

The Veteran's service-connected disabilities were PTSD, rated at 30 percent, diabetes mellitus, rated at 20 percent, tinnitus, rated at 10 percent, bilateral hearing loss, rated at 0 percent, peripheral neuropathy of the right upper extremity, 20 percent, peripheral neuropathy of the left upper extremity, 20 percent, peripheral neuropathy of the right lower extremity, 10 percent, peripheral neuropathy of the left lower extremity, 10 percent, erectile dysfunction (ED) as secondary to diabetes, 0 percent, and special monthly compensation based on loss of use of a creative organ. The combined rating is 80 percent. 

In May 2013, the Veteran had VA medical examinations that addressed his diabetes, diabetic peripheral neuropathy, and diabetes-related ED. The examiner expressed opinions regarding functional and occupational impairment due to those disorders. No medical opinion has been provided regarding effects on employability from the Veteran's PTSD, tinnitus, or hearing loss, nor regarding the combined effects of all of the service-connected disabilities on his capacity for employment. The Board therefore is remanding the TDIU issue again to obtain opinion addressing those questions.

In addition, the Veteran indicated that he receives or expects to receive Social Security disability benefits. On remand, records regarding any Social Security disability determination should be obtained.
 
Accordingly, the case is REMANDED for the following action:

1. Request from the United States Social Security Administration (SSA) a copy of the determination in any disability claim by the Veteran, and copies of the information SSA considered in making that determination. Associate those records with the Veteran's claims file.

2. Provide the Veteran's claims file to an appropriate medical professional to review. Ask the reviewer to provide opinions as to the functional effects of the Veteran's service-connected disabilities, individually, and combined, on his capacity or potential to secure or follow a substantially gainful occupation. 

3. Thereafter, review the expanded record and reconsider the remanded claim. If the claim remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order.

The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. 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 2014).



_________________________________________________
MATTHEW D. TENNER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).