Citation Nr: 1620086 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 09-02 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an increased evaluation in excess of 10 percent for postoperative residuals of right (major) wrist fracture with degenerative joint disease (DJD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty from April 1993 to January 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Board hearing was held before the undersigned Acting Veterans Law Judge at the RO in February 2011. A transcript of the hearing is of record. In July 2012, the Board denied the Veteran's claim of entitlement to an increased evaluation in excess of 10 percent for postoperative residuals of right wrist fracture with DJD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2013, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties and remanded the case to the Board. In April 2014, the Board, again, denied the claim and the Veteran appealed the Board decision to the Court. In May 2015, the Court granted a Joint Motion filed by the parties and remanded the case to the Board. In July 2015, the Board remanded the claim for additional evidentiary development. The case has now been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is needed for the issue of a TDIU. In an April 2016 written brief by the Veteran's representative, the Veteran contends that his service-connected right wrist disability prevents him from being gainfully employed. The Board finds that the issue of TDIU has been raised by the record in connection with the claim on appeal for entitlement to an increased evaluation in excess of 10 percent for postoperative residuals of right wrist fracture with DJD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the AOJ should develop a claim for a TDIU in accordance with Rice. Next, any remand development for the issue of a TDIU may impact the issue of entitlement to an increased evaluation in excess of 10 percent for postoperative residuals of right wrist fracture with DJD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As a result, the latter issue is inextricably intertwined and must also be remanded. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his representative with notice concerning how to substantiate the claim for an increased rating on the basis of TDIU and provide a form to complete the application for a TDIU. 2. The AOJ may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or a medical opinion, as deemed necessary. 3. After completing any additional development, the AOJ should readjudicate the issue of entitlement to an increased evaluation in excess of 10 percent for postoperative residuals of right wrist fracture with DJD on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 4. After completing any additional development, refer the Veteran's case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of whether an extra-schedular rating is warranted for the Veteran's service-connected disabilities under 38 C.F.R. § 4.16(b). The response from the Under Secretary for Benefits or the Director of Compensation and Pension Service must be included in the claims file. 5. Then, readjudicate the TDIU claim based upon the response from the Under Secretary for Benefits or the Director of Compensation and Pension Service. If the determination remains less than fully favorable, the Veteran and his representative must be furnished with an SSOC and given an opportunity to respond before this case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ LANA K. JENG Acting 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).