Citation Nr: 1756860 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-03 051 ) 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 due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran had active military service from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this matter in October 2015. The Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge in August 2015. A transcript of the hearing is of record. Unfortunately, the Board finds that an additional remand is necessary to comply with the October 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In October 2015, the Board remanded the issue of entitlement to TDIU. The RO was directed to address the new claims the Veteran raised at his August 2015 Board hearing. Specifically, the RO was requested to discuss the raised claims of entitlement to service connection for Meniere's disease, also claimed as secondary to bilateral hearing loss, entitlement to service connection for a prostate disability, claimed as benign prostate hypertrophy (BPH), entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), and entitlement to service connection for residuals of a nephrectomy, claimed as due to donating a kidney to a dependent child (daughter) with kidney disease which resulted from the Veteran's exposure to Agent Orange. It is important for the RO and Veteran to understand that if any one of these claims were granted, it would have an impact of the TDIU request, therefore, all new claims must be addressed. It does not appear that the RO has addressed these raised claims. Therefore, the Board finds that an additional remand is necessary to comply with the October 2015 Board remand directives. See Stegall, 11 Vet. App. at 270, (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Further, while it is true that a VA examination or opinion is not absolutely required in every case when adjudicating entitlement to TDIU, a VA examiner's opinion would be helpful in this case. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate those with the claims file. If possible, the Veteran should get any new records himself and submit them to the RO. 2. The RO should also address the new claims the Veteran has raised, as cited above. If there are any issues with adjudication on these claims, then the RO should provide a written response explaining why. 3. Afford the Veteran a VA examination in order to obtain an opinion in connection with his TDIU claim. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (i.e. a 50 percent probability or grater) that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. If the examiner opines that the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. After the above action is completed, if the claim is not fully granted, a supplemental statement of the case should be issued on the issue of entitlement to TDIU, including discussion of the new claims, and the claims file should be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2002). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2002), only a decision of the Board 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) (2017).