Citation Nr: 1815429 Decision Date: 03/18/18 Archive Date: 03/23/18 DOCKET NO. 14-20 204A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for chronic cholecystitis. 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for chronic cholelithiasis. 3. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sherri A. Stone, Attorney WITNESSES AT HEARING ON APPEAL Appellant and E.M. ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at a November 2017 videoconference hearing. A transcript of that hearing is of record. REMAND The Board finds that further evidentiary development is necessary before the Board can adjudicate the claims for entitlement to compensation pursuant to 38 U.S.C. § 1151 for chronic cholecystitis and for chronic cholelithiasis, and entitlement to TDIU. Regarding the claims for compensation pursuant to 38 U.S.C. § 1151, the Veteran submitted a timely February 2017 notice of disagreement with a November 2016 decision denying compensation pursuant to 38 U.S.C. § 1151 for chronic cholecystitis and for chronic cholelithiasis. No statement of the case addressing those claims has been issued. Therefore, the Board is required to remand the claims for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Regarding the claim for TDIU, the Board finds that a more contemporaneous VA examination is required to properly assess the current severity of the service-connected knee disabilities, and to obtain an opinion regarding the impact, if any, of the Veteran's service-connected disabilities on employment. At a November 2017 hearing, the Veteran testified that the severity of the service-connected knee disabilities had worsened since the previous VA examination in February 2011. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Further, remand is necessary to obtain a medical opinion regarding the impact of all service-connected disabilities on the Veteran's ability to obtain and maintain employment. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case on the issue of entitlement to compensation pursuant to 38 U.S.C. § 1151 for chronic cholecystitis and for chronic cholelithiasis. Notify the Veteran of his appeal rights and that he must submit a timely substantive appeal to receive appellate review of those issues. If a timely substantive appeal is received, return those claims to the Board. 2. Schedule the Veteran for a VA examination to ascertain the current severity of the service-connected disabilities. The examiner must review the claims file and should note that review in the report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as to the effect of the service-connected kidney and bilateral knee disabilities on the Veteran's occupational functioning and daily activities. The examiner should provide a complete rationale for any opinions provided. The examiner should describe the symptoms and effects of all of the service-connected disabilities on employment. 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 (50 percent probability or greater) that the service-connected disabilities, either separately or in combination, make the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. If the Veteran is felt capable of work, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 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. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts 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).