Citation Nr: 1031906 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 08-29 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, TX. The Veteran requested hearing before a Decision Review Officer (DRO) in October 2008. A hearing was scheduled for March 2009, but the Veteran failed to report. In a statement from the Veteran dated later in March 2009, the Veteran noted that he did not receive notice of the scheduled hearing and requested that the hearing be rescheduled. The Board requests that the RO clarify whether the Veteran still desires a hearing before a DRO in the remand below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary before a decision on the merits may be made regarding the Veteran's claim for TDIU. The Veteran is currently service-connected for diabetic neuropathy with proteinuria at 30 percent, coronary artery disease at 30 percent, diabetes mellitus type II at 20 percent, peripheral neuropathy of the left lower extremity at 10 percent, and peripheral neuropathy of the right lower extremity at 10 percent. When two or more disabilities are service- connected, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more for TDIU to be considered on a schedular basis. See 38 C.F.R. § 4.16(a). But for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). As the Veteran's diabetes mellitus, diabetic neuropathy with proteinuria, and bilateral peripheral neuropathy of the lower extremities are considered one disability resulting from a common etiology, the percentage criteria for TDIU are met. The file also contains evidence of unemployability. A general medical examination in December 2009 found the Veteran to be unemployable for active work, but not unemployable for sedentary work. The evidence shows that the Veteran still owns his own business, but has had to hire an employee to do the manual labor. In his September 2008 VA Form 9 and a March 2009 statement the Veteran noted that his business is no longer profitable as it cannot support both a supervisor and an employee. He stated that his income from the business is around five thousand dollars annually. The RO requested information related to his financial status, but the VA has not received any evidence to support these statements. As these financial statements are relevant to the Veteran's claim, the Board is remanding the claim to obtain these records from the Veteran. As noted in the introduction, the Veteran requested hearing before a DRO in October 2008. A hearing was scheduled for March 2009, but the Veteran failed to report. In a statement from the Veteran dated later in March 2009, the Veteran noted that he did not receive notice of the scheduled hearing and requested that the hearing be rescheduled. As the case is being remanded for further development, the Board requests that the RO clarify whether the Veteran still desires a hearing before a DRO. Additionally, VA treatment records show that the Veteran intended to file for Social Security benefits in relation to his disabilities in December 2007. No Social Security Administration (SSA) medical records or decisions are associated with the claims file. VA must continue to request relevant records from a Federal department or agency until further requests would be futile. 38 C.F.R. § 3.159 (2009). These records include medical and other records from SSA. In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically includes requesting information from other Federal departments. In Baker v. West, 11 Vet. App. 163, 169 (1998), the Court further stated that VA is required to obtain evidence from other agencies, including decisions by SSA. Accordingly, the case is REMANDED for the following action: 1. The RO should clarify whether the Veteran still desires a hearing before a DRO in regards to his TDIU claim. If the he still desires a hearing, the Veteran should be scheduled for one. 2. The RO should attempt to obtain and associate with the claims medical records, evidence, and other information related to the Veteran's Social Security claim, including a copy of any decision issued by SSA and all evidence utilized in making that decision. 3. The RO should request that the Veteran provide financial information including verification of income, statements from his business related to income and any other income information that would suggest whether or not the Veteran is currently engaged in more than marginal employment. Attempts to obtain this verification should be documented in the claims file. 4. After completion of the above and any other development the RO should deem necessary, the RO should review the expanded record and readjudicate the claim for TDIU. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review 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. 2009). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2009).