Citation Nr: 0815109 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 07-01 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from February 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating determination of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In August 2007, the veteran appeared at a hearing at the RO before the undersigned Law Judge. This matter is remanded to the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND At his August 2007 hearing, the veteran testified that he had received treatment for his service-connected disabilities at the Erie VA Medical Center (VAMC) in the last several months. The most recent VA treatment records in the claims folder cover the time period through January 2007. VA is deemed to have constructive knowledge of documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611,612-13 (1992); see also 38 U.S.C.A. § 5103A (West 2002). If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id., at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). The veteran further testified that he had recently been awarded Social Security disability benefits. VA has an obligation to obtain copies of all Social Security decisions and the records underlying those decisions. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). These records have not been associated with the claims folder. The Court has also held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the veteran's service-connected disabilities have on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Such an opinion has not been requested. The Board further notes that the veteran has testified that part of the reason that he was found unemployable by SSA was that he was suffering blackouts. He noted that he had been told that his blackouts were possibly related to either his psychiatric disorder or to his service-connected diabetes and/or its resultant neurological impairment. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all treatment records of the veteran from the Erie VAMC from 2007 to the present. 2. Contact SSA and obtain copies of all decisions pertinent to the veteran's claim for SSA benefits, as well as the medical records relied on concerning that claim. 3. Schedule the veteran for VA examination(s) to determine the impact of his service-connected disabilities on his ability to maintain gainful employment. The claims folder must be made available and be reviewed by the examiner(s). The examiners are requested to answer the following questions: Is it at least as likely as not (50 percent probability or greater) that the veteran's service- connected disabilities preclude employment consistent with his education and occupational experience? The veteran has testified that he stopped his former employment as a truck and van driver after losing his license due to black outs; is it as likely as not that black outs are associated with any service connected disease or disability? The examiners should provide a rationale for their opinions. 4. If the claim on appeal is not fully granted, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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).