Citation Nr: 1800812 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 11-17 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether there was CUE in the December 1977 rating decision that assigned an initial noncompensable evaluation for recurrent dislocation of left shoulder. 2. Whether there was CUE in the December 1977 rating decision that denied entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1974 to May 1977. This matter is before the Board of Veterans' Appeal (Board) on appeal from rating decisions issued in August 2010, February 2014, March 2015, and February 2016 by the Department of Veteran Affairs (VA) Regional Offices (RO) in Atlanta, Georgia and Sioux Falls, South Dakota. Jurisdiction remains with the Atlanta, Georgia RO. In February 2014, the Board remanded this matter for further development, and the case has been returned for appellate consideration. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As noted above, the Veteran's claim for TDIU was remanded in February 2014. At that time, the Board found that a decision regarding the Veteran's claim for a TDIU would be premature because the Veteran had eleven outstanding service connection claims, which were deemed inextricably intertwined with the claim for TDIU. The Board identified the following service connections claims: 1) headaches, 2) left and right hip condition, 3) hypertension, 4) rash to the chest and back, 5) cervicalgia, 6) right shoulder condition, 7) degenerative disc disease of the lumbar spine, 8) degenerative joint disease of the cervical spine, 9) radiculopathy of the left upper extremity, 10) radiculopathy of the right upper extremity, and 11) sleeping impairment. The Board directed the AOJ to adjudicate these issues. Since the February 2014 remand, these claims have been adjudicated in various rating decisions (February 2014, March 2015). However, the Board notes that the Veteran filed Notices of Disagreement with the rating decisions but Statements of the Cases (SOC) have not been issued, and as such the appeals are currently pending at the AOJ as reflected in VACOLS. As these pending claims are inextricably intertwined with the TDIU issue, the Board may not adjudicate the TDIU claim until the other pending appeals are resolved. The Board also requested the AOJ to the schedule the Veteran for a VA examination with a vocational rehabilitation specialist to determine where the Veteran was unable to work due to his service-connected disabilities. However, the requested examination was not completed. The Board also directed that the TDIU claim be readjudicated in a Supplemental Statement of the Case, which has not yet been issued. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, these instructions must be completed. In the remand, the Board also directed the AOJ to issue an SOC with respect to his claim that the December 1977 rating decision was CUE in its (1) assignment of a noncompensable rating for left shoulder disability and (2) denial of a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324. However, this was not done on remand and the AOJ is directed to do so. Accordingly, the case is REMANDED for the following actions: 1. Issue the Veteran an SOC with respect to his claim that the December 1977 rating decision was CUE in its (1) assignment of a noncompensable rating for a left shoulder disability and (2) denial of 10 percent evaluation based on multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324. The SOC must include notification of the need to timely file a Substantive Appeal to perfect his appeal of these issues. 2. Complete any necessary development with the outstanding appeal streams. 3. After the above development and adjudication is complete, schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist, to determine whether it is at least as likely as not that he is unable to work due to his service-connected disabilities. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should 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 that his service-connected disabilities, individually or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. Then, adjudicate the appeal for a TDIU, with consideration of all evidence of record. If the benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).