Citation Nr: 1801936 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 07-37 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Barrett, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1997 to November 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was remanded for additional development in March 2010, July 2011, September 2012, and November 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted, the Board remanded this matter to the AOJ for further development in November 2014. Specifically, the Board determined that the January 2013 examination for the Veteran's mood disorder did not adequately address the current level of impairment due to his service-connected disabilities. The Board's remand directed the AOJ to afford the Veteran a new examination to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The AOJ was then directed to readjudicate the claim for TDIU, and if it remained denied they were to issue an appropriate supplemental statement of the case (SSOC). The Board also noted the issue of entitlement to a TDIU was inextricably intertwined with a number of claims that had not been adjudicated, and consideration of a TDIU rating had to be deferred pending resolution of those claims. The new claims included service connection for a left knee disability, service connection for PTSD, an increased rating for an acquired psychiatric disability other than PTSD (already service connected as mood disorder), and an increased rating for right retropatellar pain syndrome. Since the November 2014 Board remand, medical evidence added to the record includes a number of VA examinations and a DBQ submitted from a private physician in July 2017. In addition, Social Security Administration (SSA) medical records were received in December 2015 and the Veteran's wife submitted buddy statements in December 2015 and October 2016. Lastly, records of the Veteran's vocational rehabilitation and employment evaluation were attached to the claims folder in May 2017. The SSOC issued in August 2017 included the following evidence: VA examinations from the Tampa VAMC dated December 15, 2014, January 22, 2015, January 14, 2016, and January 30, 2016; Board of Veterans' Appeals decision dated November 7, 2014; SSA medical records received December 18, 2015; treatment reports from the Tampa VAMC dated January 28, 2005, through August 1, 2017; and, treatment reports from the Orlando VAMC dated October 30, 2009, through June 30, 2017. Notably missing from the SSOC were VA examinations conducted in May 2017, June 2017, and July 2017, the vocational rehabilitation folder, and the wife's lay statements. In deciding the merits of a claim for a TDIU, all evidence needs to be considered. The examinations and the Veteran's vocational rehabilitation folder are critical in determining whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. In addition, the wife's lay statements were offered in support of the claim. The SSOC should reflect consideration of the evidence to substantiate that the AOJ has properly adjudicated the claim for a TDIU. The Veteran has not submitted a waiver of AOJ consideration for the new evidence. An attempt to obtain a waiver was sent to the Veteran in November 2017, but the applicable time period has lapsed without a response. Therefore, the AOJ must be given an opportunity to consider this evidence and properly adjudicate the claim for a TDIU in the first instance. See 38 C.F.R. §§ 19.31, 19.37 (2017). In an Appellate Brief Presentation received in October 2017, the Veteran's representation requested that should the Board develop or obtain evidence not previously reflected in a SOC or SSOC, the Veteran be provided with a notice of such evidence, informed of the proposed reliance to be placed on it, and be afforded an opportunity to respond to this new evidence. Accordingly, the claim is remanded to allow the RO to consider the aforementioned evidence in the first instance and issuance of an SSOC. 38 C.F.R. §§ 19.37, 20.1304 (2017). Accordingly, the case is REMANDED for the following action: The case should be reviewed by the AOJ on the basis of the additional evidence mentioned above and readjudicated. The AOJ should review the expanded record and readjudicate the Veteran's claim seeking a TDIU rating- noting any pending service connection issues and/or increased rating claims. If the claim remains denied, issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ D. JOHNSON 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).