Citation Nr: 0810014 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 07-22 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from December 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Disposition of this case has followed a grant of a motion to advance this appeal on the Board's docket pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND Under VA laws and regulations, TDIU may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional cases, an extra- schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). Age may not be considered in reaching this determination. 38 C.F.R. § 4.19. In this case, the veteran's service-connected disabilities include post-traumatic stress disorder (PTSD), evaluated as 50 percent disabling; arthritis of the lumbar spine, evaluated as 20 percent disabling; tinnitus and residuals of a gunshot wound of the right Achilles region with metatarsalgia, both evaluated as 10 percent disabling; and a gunshot wound scar of the back and bilateral hearing loss, both evaluated as zero percent disabling. The veteran's combined disability evaluation is 70 percent. See 38 C.F.R. § 4.25. This evaluation meets the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a), and the question thus becomes whether these disabilities, in and of themselves, preclude the veteran from securing or following a substantially gainful occupation. The evidentiary development in this case, however, is inadequate. The veteran's only contemporaneous VA examination, from January 2006, affirmed the diagnosis of arthritis of the lumbar spine but did not address the effect of this disorder on his employability. The remaining service-connected disabilities have not been addressed on examination at all, notwithstanding the fact that an October 2007 statement from a Vet Center nurse practitioner indicates that the veteran's service-connected PTSD has increased in severity, with thoughts of harming himself. A more thorough VA examination, addressing all of the veteran's disorders and their cumulative effect on his ability to secure and follow a substantially gainful occupation, is thus "necessary" under 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Prior to arranging for the veteran to undergo VA examination, the RO should obtain and associate with the claims file all outstanding VA medical records. The claims file currently includes outpatient treatment records from Boston VA Medical Center (VAMC), dated up to December 2005 and one physical therapy report from that same facility dated in October 2007. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO must obtain all outstanding pertinent medical records from the Boston VAMC since December 2005, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all outstanding pertinent records of evaluation and/or treatment of the veteran's service- connected disabilities from the Boston VAMC from December 2005 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The veteran should be afforded a VA examination, with an appropriate examiner, to determine the effect of his service-connected disorders on his employability. The veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide an opinion as to whether the veteran's service-connected disorders in and of themselves (PTSD, arthritis of the lumbar spine, tinnitus, residuals of a gunshot wound of the right Achilles region with metatarsalgia, a gunshot wound of scar of the back, and bilateral hearing loss) preclude the veteran from securing and following a substantially gainful occupation. This opinion should not in any way be predicated on either the veteran's nonservice-connected disorders or on his age. A complete rationale for this opinion should be provided in a typewritten report. If deemed necessary, multiple VA examinations may be afforded in this case, but any opinion as to unemployability must take into account all of the veteran's service-connected disorders. 3. After completion of the above development, the veteran's claim of entitlement to TDIU should be readjudicated. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).