Citation Nr: 0812353 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 04-37 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. The propriety of a reduction from 100 percent to 60 percent for residuals of prostate cancer, status post radical prostatectomy. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States REMAND The veteran served on active duty from May 1968 to December 1970. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which reduced the veteran's evaluation for residuals of prostate cancer from 100 percent to 60 percent, and an August 2004 rating decision, which denied a TDIU rating. The Board remanded this matter in September 2007; it has been returned to the Board for further appellate action. In February 2008, the Board received from the appellant a copy of a January 2008 favorable decision concerning his claim for disability benefits from the Social Security Administration. His representative waived consideration by the agency of original jurisdiction in March 2008. The RO has not attempted to obtain records from the Social Security Administration. VA has an obligation to obtain such records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). The Board also notes that the most recent treatment records in the veteran's claims folder are from 2004. These records should be updated. In addition, the veteran should be given an examination to determine if his service-connected disabilities preclude him from securing or following a substantially gainful occupation. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC for the following action: 1. Obtain records from the Social Security Administration concerning the veteran's application for disability benefits, including the medical evidence relied upon in reaching a decision on the claim for benefits. 2. Obtain records of VA treatment since December 2004. 3. Schedule the veteran for an examination to determine whether his service-connected disabilities preclude him from securing or following a substantially gainful occupation. The claims folder should be available to the examiner. In the examination report, the examiner should specifically state whether the veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation, and should explain the basis for the opinion expressed. 4. Issue a supplemental statement of the case concerning the issues on appeal, and give the appellant and his representative an appropriate period of time within which to respond. 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 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). _________________________________________________ MARY GALLAGHER 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).