Citation Nr: 1302125	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  11-16 901	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska


THE ISSUE

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Veteran and his friend


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel

INTRODUCTION

The Veteran served on active duty from October 1970 to February 1972, to include service in Vietnam from September 1971 to February 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 RO decision.  The Veteran and a friend presented sworn testimony during a November 2011 hearing on appeal before the undersigned Veterans Law Judge.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action on his part is required.


REMAND

The Veteran contends he is unable to obtain or retain employment on account of his service-connected disabilities.  His service-connected disabilities are post-traumatic stress disorder, rated as 50 percent disabling; bilateral hearing loss, rated as 30 percent disabling; and tinnitus, rated as 10 percent disabling.  

During the course of VA medical treatment, the Veteran reported that he had been awarded Social Security Administration (SSA) benefits based upon disability.  VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving or has received SSA benefits.  Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  In this case, it is reasonable to assume these records would be relevant to the currently appealed claim, as both claims involve unemployability due to disability.  Furthermore, the SSA benefits were apparently awarded quite recently, during the time frame that this appeal was pending, meaning that any medical evidence generated by SSA would be pertinent to the Veteran's current appeal as it would reflect his recent physical and mental condition.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  

As the Veteran continues to receive VA medical care, his VA medical records should be updated for the claims file.  Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  The RO should obtain from the SSA the records pertinent to the Veteran's claim for Social Security disability benefits, as well as the medical records relied upon concerning that claim.  38 U.S.C.A. § 5106.  

2.  The RO should obtain all records of VA medical treatment afforded to the Veteran subsequent to May 2011 by the VA Nebraska-Western Iowa Health Care System, including the Grand Island Community Based Outpatient Clinic and all related clinics, for inclusion in the claims file.

3.  After the development requested above has been completed, the RO should again review the record.  Any further evidentiary development which may become apparent should be conducted at this time, such as obtaining further informed medical opinion.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond.

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).



_________________________________________________
M. W. Greenstreet
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).