Citation Nr: 1619325 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 09-15 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas 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 ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In a March 2015 decision, the Veteran denied the claim for a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2016 Order, the Court granted a joint motion of the parties. The record before the Board consists of the Veteran's paper claims files and electronic records in Virtual VA and the Veterans Benefits Management System. REMAND The Veteran filed a VA Form 21-526EZ, Fully Developed Claim form, for increased rating for radiculopathy of the right lower extremity and service connection for radiculopathy of the left lower extremity in February 2016. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). These claims should be adjudicated by the AOJ before the Board decides the issue on appeal. It appears there are outstanding private treatment records, namely those associated with treatment by Dr. S.B. These must be requested. Additionally, the Veteran should be afforded a VA examination to determine the current degree of severity of the service-connected disabilities and a Social and Industrial Survey should be performed to assess the impact of the disabilities on the Veteran's ability to work. Furthermore, in light of the evidence that absenteeism related to the service-connected disabilities has resulted in the Veteran's current unemployment, the claim should be referred to the Director of the Compensation Service for extra-schedular consideration if the Veteran does not meet the minimum schedular criteria for a TDIU. In light of these circumstances, this case is remanded to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Adjudicate the issues of entitlement to an increased rating for radiculopathy of the right lower extremity and service connection for radiculopathy of the left lower extremity and inform the Veteran of his appellate rights with respect to the decisions. 2. Undertake appropriate development to obtain all pertinent, outstanding medical records, including records pertaining to treatment provided by Dr. S.B. 3. Then, afford the Veteran a VA examination to determine the current degree of severity of the service-connected lumbar spine disability and radiculopathy. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for adjudicative purposes, including providing an opinion on the effect of the service-connected disabilities on the Veteran's occupational functioning, currently and historically. 4. Next, a Social and Industrial Survey should be performed. The surveyor should complete all required questions, and then specifically state an opinion as to whether there is a 50 percent or better probability that the Veteran's service-connected disabilities have been sufficient by themselves to preclude the Veteran from maintaining any form of substantially gainful employment consistent with his education and occupational background at any time during the period of the claim. A complete rationale for the opinion must also be provided. 5. Undertake any other indicated development. 6. Refer the claim for a TDIU to the Director of the Compensation Service for extra-schedular consideration if the Veteran does not meet the minimum schedular criteria for a TDIU. 7. Then, readjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin 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).