Citation Nr: 0002153 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-28 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total rating on the basis of individual unemployability. REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney at Law ATTORNEY FOR THE BOARD Robin M. Webb, Associate Counsel INTRODUCTION The veteran had verified active service from February 1979 to November 1985. The record also indicates that the veteran had unverified active service from April 1971 to February 1979. This appeal arises before the Board of Veterans' Appeals (Board) from a rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, in part, denied the veteran's claim of entitlement to individual unemployability. The Board notes that the veteran's appeal was before the Board in October 1999. At that time, the issue of entitlement to a total rating based on individual unemployability was remanded for further action. Specifically, the RO was directed to incorporate the veteran's vocational rehabilitation file into the veteran's claims file. Review of the record shows that the RO complied with the Board's directives, as required by law. See Stegall v. West, 11 Vet. App. 268 (1998). Here, the veteran's vocational rehabilitation file was obtained and incorporated into the veteran's claims file. REMAND Upon review of the record as to the current severity of the veteran's service-connected disabilities, the Board finds the latest clinical evidence of record (the April 1997 VA examination) inadequate for rating purposes. Littke v. Derwinski, 1 Vet. App. 90 (1990). Here, the Board notes that the VA examiner reiterated throughout the examination that none of the veteran's medical records were available for review. The Board also notes that the VA examiner commented on the veteran's employability only as to the veteran's service-connected bilateral knee disabilities. The VA examiner did not discuss the veteran's service-connected bilateral hearing loss or its impact on the veteran's employability. Further, subsequent to the April 1997 VA examination, the RO granted service connection for tinnitus and assigned a 10 percent disability rating. However, to date, there has been no clinical discussion as to the impact of the veteran's tinnitus on his employability. In light of the above evidentiary deficiencies, therefore, the issue of entitlement to a total rating on the basis of individual unemployability will not be decided pending a REMAND for the following actions: 1. After any necessary information and authorization are obtained from the veteran, copies of any post-April 1997 treatment records, VA or private, inpatient or outpatient, and associated with the veteran's service-connected disabilities should be obtained by the RO and incorporated into the claims file. 2. VA orthopedic and general medical examinations should be scheduled and conducted, in order to determine the severity of all of the veteran's service- connected disabilities. All suggested studies should be performed, and all findings should be recorded in detail. With respect to the veteran's knees, the VA examiner should comment as to range of motion of the knees, pain on motion, weakened movement, excess fatigability, and incoordination, if present. Also, both examiners should address whether the veteran's service-connected disabilities render him unemployable. The Board stresses that the claims files and a separate copy of this remand must be made available to and be reviewed by the examiners in conjunction with the attendant examinations. The veteran should be advised that failure to report for the scheduled examinations can have adverse consequences in the adjudication of his claim. 38 C.F.R. § 3.655 (1999). 3. The RO should carefully review the examination reports to ensure that they are in complete compliance with this remand, including all requested findings and opinions. If not, the reports should be returned to the examiners for corrective action. 4. The RO should then review the veteran's claim as to entitlement to a total rating on the basis of individual unemployability, in light of the evidence of record (including the latest VA examination reports) and applicable law and regulation. If the veteran's claim remains in a denied status, he and his representative should be provided with a supplemental statement of the case, which should include a full discussion of actions taken and the reasons and bases for such actions. The applicable response time should be allowed. In taking this action, the Board implies no conclusion as to any outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. V. L. Jordan Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).