Citation Nr: 1316134 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 06-36 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU) from March 3, 2007. 2. Entitlement to service connection for a heart disorder, claimed as secondary to service-connected diabetes mellitus. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2005 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In the February 2005 rating decision, service connection for posttraumatic stress disorder (PTSD) was established with a 50 percent disability rating effective June 15, 2004. In a March 2009 rating decision, the rating was increased to 100 percent, effective October 16, 2008. In a September 2009 decision, the Board denied the claim for a rating in excess of 50 percent from June 15, 2004 to October 15, 2008. The Veteran appealed the Board's September 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (Joint Motion), the parties explicitly noted that the Veteran was not appealing that portion of the Board's decision that denied him entitlement to an initial disability rating in excess of 50 percent for PTSD from June 15, 2004 to October 2008, and was only seeking an order vacating and remanding the September 2009 Board decision to the extent that it implicitly denied the Veteran a TDIU from March 3, 2007. In May 2011, the Court granted the Joint Motion and remanded the matter to the Board. In November 2011, the Board remanded the claim of entitlement to TDIU subsequent to March 3, 2007. As discussed in more detail below, the Board finds that there was no compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). In the May 2008 rating decision, service connection was denied for heart disease, including as secondary to the Veteran's service-connected diabetes mellitus. The Veteran appealed the decision to the Board and in September 2009, the Board remanded this issue in order to obtain a VA examination. In a November 2010 decision, the Board denied service connection for a heart disorder. The Veteran appealed the Board's November 2010 decision to the Court. In May 2012, the Court granted a Joint Motion and remanded the matter to the Board, specifically to obtain the Veteran's Social Security Administration (SSA) records. The Veteran has submitted several requests for records from his claims folder pursuant to the Freedom of Information Act (FOIA). It appears that his initial request was acknowledged by the Oakland RO but deferred on the basis that his claims folder was not at that facility. Since then, the Veteran has made subsequent FOIA requests and there is no indication upon review of the claims folder that he has been provided with the requested records. As the Veteran's claim is being remanded for additional development, there is no prejudice to the Veteran in REFERRING his FOIA requests to the AOJ for appropriate action. 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 issue of the Veteran's entitlement to a TDIU was previously remanded in November 2011 for further development. A review of the record reveals that the directives set forth in the Board's previous remand were not followed, most likely because of the pending appeals at the Court. The Veteran is entitled to compliance with the remand instructions and the Board is required to ensure compliance. Stegall, 11 Vet. App. at 270-71. Thus, it is necessary to remand the case for further evidentiary development consistent with the Board's November 2011 remand and the Court's May 2012 Joint Motion. Specifically, the Board finds the Veteran is in receipt of disability benefits from the SSA but the medical and legal documents pertaining to the Veteran's application for SSA benefits have not been associated with the claims folder. See Joint Motions for Remand; Appellant's Wife Statement, November 2008 ("[The Veteran] has been on social security disability since September of 2007 and unable to work."); see also Veteran's Notice of Disagreement, June 2008 ("I notified the VA that there were records available with social security with regards to my disability."). The possibility that SSA records could contain evidence relevant to the claim for a TDIU and a heart disorder secondary to diabetes mellitus cannot be foreclosed absent a review of those records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Although the Veteran has recently stated that he wants the Board to render a decision without obtaining his SSA records, it is necessary for the Board to acquire these records as they could contain information helpful to the Veteran's claims. Id.; see Veteran's 90-Day Letter Response Form, February 2013. On remand, efforts should be made to obtain these records. 38 C.F.R. § 3.159(c)(2) (2012). The duty to assist requires the RO to make reasonable efforts to obtain relevant VA and private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Upon remand, recent VA treatment records and private medical records should also be obtained. 38 C.F.R. § 3.159(c). After SSA and medical records are obtained, it is necessary to provide the Veteran with a VA medical opinion that specifically addresses his TDIU claim. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. After securing the necessary releases, obtain records of treatment from Dr. Gupta in Visalia, California since August 2007 and Dr. de la Cerna in Visalia, California since January 2008 in addition to updated records from the VA Medical Center in Fresno, California since March 2007 along with records from any other medical treatment facilities that the Veteran identifies as having evidence relevant to his claims. A response, negative or positive, should be associated with the claims file. 2. Contact SSA and request a copy of the administrative decision awarding disability benefits to the Veteran as of 2007, as well as all underlying evidence and information relied upon in rendering such decision. Any attempts to obtain records that are ultimately unsuccessful, should be documented in the claims folder. 3. After completion of the above, schedule the Veteran for a VA examination to evaluate the status of the service-connected disabilities. The claims folder should be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities, (PTSD; nephropathy; diabetes mellitus with erectile dysfunction and cataracts; peripheral neuropathy of the bilateral lower extremities and left upper extremity; tinnitus; and bilateral hearing loss) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. 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 any impairment caused by non-service-connected disabilities. In providing this opinion, the examiner should address the significance of the Veteran's March 2008 statement that he left his job in March 2007 because of stress, the August 2008 psychiatrist statements that the Veteran left his job because he got mad and stressed out and the February 2011 VA examiner's finding that the Veteran is permanently and total disabled and unemployable as a result of all of his illnesses. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. A complete rationale should be given for all opinions and conclusions expressed. 4. Then, readjudicate the issues on appeal. If any benefits remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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).