Citation Nr: 0810415 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 07-22 061 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to a total rating due to individual unemployability caused by service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from March 1985 to October 1987. This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the RO. In March 2008, the veteran had a video conference with the undersigned Veterans Law Judge. The Veterans Law Judge granted the veteran's motion to have his case advanced on the Board's docket. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the veteran if further action is required. REMAND In April 2006, the RO received the veteran's claim that he was unemployable due to his service-connected disabilities: chondromalacia of the left patella, evaluated as 40 percent disabling; left ankle strain, evaluated as 30 percent disabling; and a lump on his left iliotibial band, evaluated as noncompensable. He reported that as a result of his service-connected disabilities, he had lost multiple jobs, including those with law enforcement agencies in Bastrop County, Texas and Leander, Texas, as well as a loss prevention position with Academy Sports in Austin, Texas, and an administrative position with Beckett Family Services in Rumney, New Hampshire. The impact of his service-connected disabilities on those positions, such as the associated amount of days missed or the reasons for terminating his employment have not been requested from all of those employers. During his video conference, the veteran also testified that approximately every two to three months, he was followed by VA for his service-connected disabilities. Records of such treatment from May 2005 to June 2007 have not been associated with the claim folder. In addition to the foregoing, the veteran testified that he had applied for VA vocational rehabilitation and education benefits. A review of the claims file shows that in May 1988, he did, in fact, apply for such benefits. However, his VA vocational rehabilitation and education folder has not been associated with the claims file. Finally, the veteran testified that he was going to apply for disability benefits from the Social Security Administration. In light of the foregoing, additional development of the record is warranted prior to further appellate consideration by the Board. Accordingly the case is remanded for the following actions: 1. Associate the veteran's VA Vocational Rehabilitation and Education folder with the claims file. 2. Request that the veteran provide the names and addresses of all of his employers since service. This should include, but is not limited to the following: the law enforcement agency in Bastrop County, Texas, where he was employed from October 1993 to April 1995; the law enforcement agency in Leander, Texas ,where he was employed from April 1995 to September 1997; and Academy Sports in Austin, Texas where he was employed from September 1997 to April 1999. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. 3. When the actions in part 2 have been completed, contact each of the foregoing employers, directly, and request copies of the veteran's employment records, including, but not limited to, employment applications, medical records and the reports of any pre-employment examinations; job descriptions; reports of job training; reports of duty limitations or job changes and the reasons for such limitations or changes; reports of workman's compensation claims or claims for other disability benefits; reports of vocational rehabilitation or job retraining; counseling statements; customer/client letters; reports of union involvement; reports of cessation of employment and the reasons, therefore; and the receipt of any associated severance pay. In addition to the former employers noted in part 2 above, request such information directly from Beckett Family Services, 1765 Rte. 25, Rumney, New Hampshire 03266. The veteran was employed by that agency from September 2002 to March 2005. If the present employer/former employers do not have such documents, request that the employer/former employers provide a statement on business letterhead stationary addressing the foregoing concerns. For any period that the veteran was self- employed, request that the veteran furnish the names and addresses of people who hired him. Then, request a letter containing the veteran's employment information from the people who hired him, including, but not limited to, clients and any contractors or sub- contractors for whom he worked. Also request that the veteran provide any such information in his possession. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. Efforts to obtain records of the veteran's employment with any Federal agency must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2007); 38 C.F.R. § 3.159(c)(2) (2007). If records of the veteran's employment with a private employer are unavailable, notify the veteran of that fact in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). 4. Request that the Social Security Administration furnish records relevant to the veteran's application for and/or award of Social Security disability benefits. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. Efforts to obtain the veteran's Social Security records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). 5. Request that the veteran provide the name and address of all health care providers (VA and non-VA) who have treated him for any of his service- connected disabilities since May 2005. Also request that he furnish the dates of such treatment. Then, request records of that treatment directly from each health care provider identified. This should include, but is not limited to, discharge summaries, consultation reports, X-ray reports, laboratory studies, daily clinical records, doctor's notes, nurse's notes, and prescription records. Also request that the veteran provide any such records he may have in his possession. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the records are in the possession of a Federal department or agency, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). If the requested records are in the possession of a health care provider not associated with the Federal government, and such records are unavailable, notify the veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). 6. When the actions in parts 1, 2, 3, 4, and 5 have been completed, schedule the veteran for a VA social and industrial survey to assess his employment history, educational background, and day-to-day functioning. The claims folder, and a copy of this remand must be made available to the surveyor for review in conjunction with the survey, and the surveyor must acknowledge receipt and review of such materials in any report generated as a result of this remand. The surveyor must express an opinion, with rationale, as to whether the veteran is precluded from obtaining/retaining substantially gainful employment due solely to any or all of his service- connected disabilities or whether he is unable to obtain/retain substantially gainful employment due to any non- service-connected conditions. In determining whether an individual is unemployable by reason of service- connected disabilities, consideration must be given to the various types of employment, e.g., heavy manual labor, light manual labor, or sedentary employment. Such consideration must include his educational and occupational experience. See 38 C.F.R. § 3.341. If such determinations are not possible without resort to speculation, the examiner must so state. 7. When the actions in parts 1, 2, 3, 4, 5, and 6 have been completed, schedule the veteran for an examination to determine the extent of his service- connected disabilities. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder, and a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must respond to the inquiry as to whether or not any or all of the veteran's service-connected disabilities preclude him from obtaining or retaining substantially gainful employment. The examiner must state the medical basis or bases for this opinion. If the examiner is unable to so state without resort to speculation, he or she should so state. 8. When the actions requested in parts 1, 2, 3, 4, 5, 6, and 7 have been completed, undertake any other indicated development, if deemed by the RO/AMC to be appropriate under the law. Then readjudicate the issue of entitlement to a TDIU. If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The veteran need take no action unless he is notified to do so. It must be emphasized, however, that the veteran has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ VITO A. CLEMENTI 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).