Citation Nr: 1801664 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-08 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Review of the July 2012 rating decision, the December 2014 statement of the case, and the November 2015 supplemental statement of the case reflect that the Veteran's claim for entitlement to a TDIU was denied, in part, because she did not meet the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). However, since the RO most recently considered the Veteran's claim in November 2015, the RO issued a rating decision in April 2017 which awarded an increased rating of 40 percent for her service-connected right leg and foot phlebitis, effective September 19, 2016. Based upon this award, and with consideration of the bilateral factor, the Veteran now meets the schedular criteria for a TDIU under 4.16(a), effective September 19, 2016. Additionally, review of the claims file does not reflect that the Veteran has been provided a VA examination to assess the impact of all of her service-connected disabilities upon her employability. Although she has undergone VA examinations to determine the severity of her service-connected disabilities, there is no VA opinion of record which indicates whether the Veteran's service-connected disabilities, considered in combination, preclude the Veteran from securing or following substantially gainful employment consistent with her education and occupational experience. Accordingly, the Veteran must be provided with a VA examination. Last, the Board observes that the most recent VA 21-8490, Veterans Application for Increased Compensation Based on Unemployability, was received from the Veteran in November 1995. On remand, the RO should request that the Veteran complete an updated TDIU claim form. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran a VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and ask that she complete it and return it to the RO. 2. The Veteran should be provided with a VA examination to determine the effects of all of her service-connected disabilities, in combination, on her ability to secure or maintain substantially gainful employment consistent with her education and occupational experience. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the case, the examiner must provide an opinion as to the following: *Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected disabilities, considered in combination, preclude her from securing and following substantially gainful employment consistent with her education and occupational experience? The opinion provided must include an explanation of the bases for the opinion. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion could not be provided without resort to speculation. 3. The RO must notify the Veteran that it is her responsibility to report for any scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review 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 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). _________________________________________________ MICHAEL MARTIN 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).