Citation Nr: 1300780 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-35 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. In March 2010, the Veteran testified before a Decision Review Officer at the RO. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran is service connected for psoriasis, rated as 60 percent disabling; depression with anxiety associated with psoriasis, rated as 30 percent disabling; and prostatitis, rated as noncompensably disabling. His combined disability evaluation is 70 percent. Therefore, his disabilities satisfy the criteria set forth in 38 C.F.R. § 4.16(a) (2012). Pursuant to VA's duty to assist, VA must assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Because the Veteran is unemployed and his service-connected disabilities satisfy the percentage requirements set forth in 38 C.F.R. § 4.16(a), the Board finds that, in order to adjudicate this claim, VA must obtain a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities, and in particular his psoriasis, render him unable to secure or follow a substantially gainful occupation. Thus, the Board has no discretion and must remand this matter to afford the Veteran a VA examination, the report of which must address the above inquiry. See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Further, the most recent treatment records in the claims file are dated February 2010. The Veteran may have received additional treatment in the intervening time. Therefore, on remand, the Veteran should be given the opportunity to identify any providers who have treated him for his service-connected disabilities since February 2010. Identified relevant records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran identify any healthcare providers who treated him after February 2010 for his service-connected disabilities. After securing any necessary authorization from the Veteran, all identified treatment records, to include any updated records from Dr. B at Dermatology Associates of Eastern Connecticut, dated from February 2010 to the present, should be obtained. In light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the impact of his service connected disabilities on his ability to secure or follow a substantially gainful occupation. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, and in particular his psoriasis, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. The examiner should take into consideration the Veteran's level of education, special training, and previous work experience. The examiner should describe what type of employment activities would be limited due to psoriasis, depression with anxiety, and prostatitis, both alone and in the aggregate. The examiner should also address the effect of psoriasis, depression, anxiety, or prostatitis medications on the Veteran's ability to engage in employment activities. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. Then readjudicate the claim. If the benefit sought remains denied, the Veteran and his representative must be furnished an SSOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 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. 2012). _________________________________________________ STEVEN D. REISS 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) (2012).