Citation Nr: 18149476 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 13-05 720 DATE: November 9, 2018 REMANDED Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1984 to September 1992 and from September 2004 to May 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal after arising from the adjudication as a result of a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue to entitlement to a TDIU was raised during the course of the Veteran’s appeals and was previously remanded in September 2017. Entitlement to a total disability for individual unemployability due to service-connected disabilities (TDIU) is remanded. Unfortunately, the Board finds that the claim must again be remanded for additional development. The Board finds that there has not been substantial compliance with the mandates of the September 2017 remand order. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In the September 2017 Board remand, the Board requested that the Veteran be contacted to return a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and scheduled for a VA examination to determine the functional impact of the Veteran’s service-connected disabilities. The record reflects that the RO attempted to have the Veteran complete a VA Form 21-8940 and be scheduled for the appropriate VA examination. However, various different correspondence in the record are marked as returned mail and the VA examinations scheduled in June 2018 and July 2018 all reflect that the Veteran did not appear. An August 2018 Bureau of Prisons Match reflects that the Veteran was confined in January 2018. There is no date of release, actual or projected, listed but there is a VA primary care note for the Veteran dated in April 2018. In September 2018, the Veteran’s VA examinations were cancelled by the RO and no other reason was noted. As such, the Board finds that the matter must be remanded again for an appropriate VA examination in accordance with Stegall, 11 Vet. App. 268. Important to the actions on remand, in October 2018 correspondence from the RO, it appears that the Veteran may no longer be incarcerated and that an address was located for the Veteran. As such, on remand the RO must first determine whether the Veteran is still incarcerated or has been released. If the Veteran is still incarcerated, the RO must follow pertinent procedures for scheduling examinations of incarcerated Veterans. If he has been released, the RO must verify a current address and then complete the directives noted in the September 2018 Board remand. Upon remand, all updated VA treatment records must also be obtained. The matter is REMANDED for the following actions: 1. Perform any development action necessary to confirm the Veteran’s current contact information and mailing address, to include if he is still incarcerated in any federal, state, or local facility. All attempts to confirm this information should be properly documented in the claims file. 2. Send the Veteran and his representative the proper statutory and regulatory notice regarding what is necessary to substantiate a claim for entitlement to TDIU, to include the VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request that the Veteran complete the form. 3. Also contact the Veteran and his representative for his assistance in identifying and obtaining any outstanding records for his service-connected disabilities. He should specifically be requested to submit authorization necessary to enable VA to obtain records of any treatment received while incarcerated, as well as records of any private treatment. Obtain the Veteran’s VA treatment records from April 2018 to the present. 4. After completing the development requested in items 1 through 3; If the Veteran is incarcerated: Take all reasonable measures to schedule the Veteran for the examination requested below. Pursuant to the VA Adjudication Procedure Manual, confer with prison/detention center authorities to determine whether the Veteran may be escorted to a VA medical facility for examination or if an examination at the prison is feasible. If not, follow the prescribed procedure as required. If the Veteran is not incarcerated: Schedule the Veteran for a VA examination by an appropriate provider. The claims folder should be made available to the clinician in conjunction with this request. The clinician is requested to provide an opinion on the functional impairment caused by the Veteran’s service-connected skin disability (including scarring), hearing loss, and tinnitus, singularly and jointly, on his daily life. In so doing, the clinician should take into consideration his level of education, special training, and previous work experience, as reflected by the evidence of record. The clinician must not consider his age or any impairment caused by nonservice-connected disabilities. The clinician should provide a complete rationale for any opinion(s) rendered. If the examiner cannot provide the requested opinion(s) without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel