Citation Nr: 1804245 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-22 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1999 to July 2006, including service in the Southwest Asia theater of operations from March 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2013, the Board granted the following initial disability ratings for posttraumatic stress disorder (PTSD): (1) 70 percent from February 22, 2011 to March 20, 2011, and (2) 100 percent from March 21, 2011 to June 30, 2011. Additionally, it added the issue of entitlement to a TDIU based upon a February 2013 statement by the Veteran's former representative and remanded that issue for adjudication in the first instance. The matter is now before the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While the Board regrets the additional delay, further development is necessary prior to the adjudication of the merits of the Veteran's claim. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). In this case, the Board finds that the AOJ did not substantially comply with the October 2013 remand directives. Specifically, in its October 2013 remand, the Board directed the AOJ to afford the Veteran a VA examination and provide him with an opinion as to the functional impact on employment of his service-connected disabilities. The Veteran was provided a VA examination in August 2014. But, following the August 2014 examination, the examiner provided an opinion as to the effects of only the Veteran's PTSD. In addition to PTSD, the Veteran is also service connected for bilateral tinnitus, bilateral hearing loss, and post traumatic trochanteral bursitis of the right hip. An opinion regarding the functional impact of all of these conditions-either in isolation or in combination-is not yet associated with the claims file. Accordingly, the Board will remand the matter so that one may be obtained. Additionally, given the need to remand the foregoing claim, any outstanding VA treatment records should also be obtained-particularly those dated since July 2015. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since July 2015. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After completing the above development to the extent possible, send the Veteran's claims file to an appropriate clinician for the issuance of a medical opinion. The claims file, including a copy of this remand, must be made available to and reviewed by the clinician. If the clinician believes that an examination is necessary, one should be scheduled and conducted. Following a review of the claims file-and the performance of an examination if deemed warranted-the clinician should comment upon the functional impact of the Veteran's service-connected disabilities (i.e., PTSD, bilateral tinnitus, bilateral hearing loss, and post traumatic trochanteral bursitis of the right hip). The clinician should comment upon the functional impact of the service-connected disabilities in both isolation and/or combination, including the types of work that could be precluded and those that could remain feasible. For any opinion provided, the clinician must supply a complete rationale. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The Veteran 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). _________________________________________________ S.C. KREMBS 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).