Citation Nr: 1305533 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-35 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total rating based upon individual unemployability, based upon service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008, rating decision of the Des Moines, Iowa, Department of Veterans Affairs (VA) Regional Office (RO), which denied a TDIU. The Veteran testified at a RO hearing in October 2008. The Veteran testified again before the undersigned Acting Veterans Law Judge (VLJ) in May 2011. A transcript of that hearing is of record and associated with the claims folder. 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 Veteran asserts, in essence, that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The Veteran is service connected for diabetes mellitus, hearing loss, tinnitus, erectile dysfunction, peripheral neuropathy of the upper and lower extremities, cataracts with intraocular lens replacements, and hypertension. He has a combined 80 percent disability rating. In a February 2008 VA examination, the examiner opined that the Veteran was not totally disabled. She related that he could be gainfully employed with work restrictions of no prolonged standing or walking, or walking of more than 30 minutes at a time. She also stated that the Veteran should be able to sit for 1/2 of his shift, but lift no more than 40 pounds. In February 2009, there was a statement submitted from the Veteran's VA Vocational Rehabilitation Counselor which indicated that the Veteran had been found infeasible for return to gainful employment and had been offered Independent Living Services. Those Vocational Rehabilitation records were not associated with the claims folder. In March 2010, the Veteran underwent a VA examination. The examiner indicated that the Veteran had a diagnosis of diabetes mellitus, peripheral neuropathy and autonomic dysfunction, as well as hypertension. The examiner stated that these conditions were not incapacitating. He related that the Veteran was a trained former police officer with preserved mental status who spoke intelligently. He ambulated unaided, used a hearing aid, had no foot ulcers or gait problems, and was capable of gainful employment. In an August 2010 VA outpatient record, it was noted that the Veteran was prescribed the maximum pain medication for his peripheral neuropathy. It also was noted that he had delayed wound healing of the foot. During a May 2011 Travel Board hearing, it was still noted that the Veteran was taking the maximum pain medication for his peripheral neuropathy pain. He related that he received all of his treatment from the VA and that he was scheduled to undergo an MRI as he had sleeping problems that his primary physician believed could be the result of the medications he was taking for his neuropathic pain. The findings of that MRI are not associated with the claims folder. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet.App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet.App. 611, 613 (1992). The RO/AMC should obtain and associate with the claims file any additional outstanding VA records, including the Veteran's VA vocational rehabilitation records, his MRI findings, and any VA medical records dated since January 2011 to the present. Finally, after obtaining all of the Veteran's VA records since 2011, the Veteran should be provided a VA examination and an opinion should be rendered to determine whether his service-connected singularly or in the aggregate, render him unable to secure or follow a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since 2011, specifically to include his VA vocational rehabilitation records which resulted in the February 2009 opinion made by his vocational rehabilitation counselor and a MRI report discussed at the Veteran's May 2011 Travel Board hearing, and associate those records with the claims folder. 2. Thereafter, the Veteran should be afforded a VA examination with opinion to determine whether he is unemployable solely due to his service-connected disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should be requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities alone, or in the aggregate, are of such severity to result in inability to secure of follow a substantially gainful occupation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history[,]' 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, must be made available to the examiner for review. The examiner should explain the rationale for any opinion given regarding the effect of the Veteran's service-connected disabilities on his ability to obtain or maintain employment, to include discussion of obstacles and challenges he might face, and his capability for performing sedentary employment in light of his past employment experience. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. The examiner should also discuss the discrepancies raised by his prior VA examinations of February 2008 and March 2010, and the contrary opinion provided by the February 2009 vocational rehabilitation report. 3. Then, adjudicate the issue on appeal. If the benefit sought on appeal is not granted, he and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. The Veteran 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. 2012). _________________________________________________ MATTHEW D. TENNER Acting 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).