Citation Nr: 1108800 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 06-18 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to March 1969. He received the Purple Heart Medal. This matter initially came before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO denied entitlement to a TDIU. In June 2010, the Board remanded this matter for further development. 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 In its May 2010 statement, the Veteran's representative raised the issues of entitlement to increased ratings for all of his service-connected disabilities. This claim has not yet been adjudicated and is inextricably intertwined with the issue of entitlement to a TDIU. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Holland v. Brown, 6 Vet. App. 443m 446 (1994) (a TDIU claim premised on a specific disability, is inextricably intertwined with a claim for an increased rating for the same disability). In a June 2010 statement (VA Form 21-4138), the Veteran reported that he was in receipt of Social Security Administration (SSA) disability benefits for his service-connected disabilities. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). As any SSA disability records have not yet been associated with the claims file and are relevant to the claim for a TDIU, a remand is also necessary to obtain such records. The Veteran was afforded a VA examination in September 2010. The physician who conducted the examination provided an opinion that the Veteran's service connected disabilities would not prevent gainful employment that was sedentary or required only light manual labor. If relevant records are obtained from SSA, the examiner should have the opportunity to consider them. Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should adjudicate the claim for increased ratings for residuals of a gunshot wound to the right leg, posttraumatic stress disorder (PTSD), residuals of a fracture of the right tibia and fibula, residuals of a gunshot wound to the right forearm and wrist, a lumbosacral strain with spondylolisthesis at L5-S1 and spondylosis of the lumbosacral spine, a residual scar from a shell fragment wound of the left upper extremity, a residual scar from a shell fragment wound of the left lower extremity, and scars of the right upper thigh. 2. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. If these records are unavailable, this should also be documented in the claims file. 3. If, any records from SSA are obtained and associated with the Veteran's claims file, ask the examiner who conducted the September 2010 VA examination to review the Veteran's claims folder and provide an opinion as to whether his service-connected disabilities prevent him from obtaining and keeping employment for which his education and occupational experience would otherwise qualify him. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's service-connected disabilities (residuals of a gunshot wound to the right leg, PTSD, residuals of a fracture of the right tibia and fibula, residuals of a gunshot wound to the right forearm and wrist, a lumbosacral strain with spondylolisthesis at L5-S1 and spondylosis of the lumbosacral spine, a residual scar from a shell fragment wound of the left upper extremity, a residual scar from a shell fragment wound of the left lower extremity, and scars of the right upper thigh) would either individually or collectively prevent him from obtaining or keeping gainful employment for which his education and occupational experience would otherwise qualify him. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports must be acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. If the September 2010 examiner is unavailable or otherwise unable to provide the requested opinion, the Veteran should be afforded a new VA examination to obtain the necessary opinion. 4. The AOJ should review any opinion/examination report to ensure that it contains the information requested in this remand and is otherwise complete. 5. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2010). _________________________________________________ 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) (2010).