Citation Nr: 1615821 Decision Date: 04/19/16 Archive Date: 04/26/16 DOCKET NO. 06-18 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than November 18, 2002, for the grant of a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from April 1962 to April 1966, This case initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that, in pertinent part, denied entitlement to a TDIU. In September 2003, the Veteran testified during a personal hearing at the RO. In a May 205 rating decision, the RO granted a TDIU, effective from November 18, 2002. The Veteran perfected an appeal as to the effective date of her TDIU award. In August 2007, the Veteran testified during a hearing at the RO before the undersigned. Transcripts of both hearings are of record. In April 2008 and April 2011, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development. In a March 2013 decision, the Board denied the Veteran's appeal for an effective date earlier than November 18, 2002, for the grant of a TDIU. The Veteran appealed the Board's March 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2014 Memorandum Decision, the Court vacated the Board's decision and remanded the matter for further action. In December 2014 and August 2015, the Board remanded the Veteran's case to the AOJ for further development. In August 2015, the Board referred the matter of whether new and material evidence has been received to reopen the claim for service connection for lupus, and claims for service connection for heart, lung, and back disorders, to the AOJ for appropriate development and adjudication. There is no indication in the record that any action was taken and the claims are, again, referred to the AOJ. 38 C.F.R. § 19.9(b) (2015). Also in August 2015, the Board noted that, in November 2013, the Veteran requested that her claims file be transferred to the St. Petersburg, Florida, RO, as she moved permanently to Florida, and referred the matter to the Montgomery RO for appropriate action. No action was taken on the Veteran's request and it is, again, referred the RO. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In November 2015, a VA examiner opined that the medical record did not support the Veteran's total disability between 1987 and 2002. The examiner did not provide examples of the types of employment the Veteran would be able to perform, as directed by the Board in the August 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA physician-examiner who provided the November 9, 2015 examination note for an addendum opinion (or a similarly qualified physician-examiner). The examiner shoulder review the claims file and his report and address the following: a. In your report, you stated that the medical record does not support the Veteran's total disability between September 1987 and November 2002. If you find that the Veteran was able to engage in gainful employment (earnings above the poverty level for a single individual) notwithstanding her service-connected disabilities, please cite examples of the types of employment the Veteran would be able to perform. b. If the examiner cannot provide an opinion without resorting to mere speculation, he/she should provide a complete explanation why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). c. Reasons should be provided for all opinions rendered. (A clinical evaluation should be scheduled only if deemed necessary by the examiner.) 2. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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 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). _________________________________________________ JAMES L. MARCH 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).