Citation Nr: 1318490 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 08-34 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a March 2012 decision, the Board, in pertinent part, denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2012 Order, the Court granted the parties' Joint Motion for Partial Remand, vacated the portion of the Board's decision that denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, and remanded the matter to the Board for further development consistent with the directives in the Joint Motion for Partial Remand. The Board notes that in the March 2012 decision, the Board denied an effective date prior to January 28, 2008 for the grant of service connection for coronary artery disease; denied an initial rating for coronary artery disease in excess of 30 percent from January 29, 2008 and in excess of 60 percent from June 9, 2011; denied an initial rating in excess of 20 percent for type II diabetes mellitus; and denied higher ratings for peripheral neuropathy of the left and right lower extremities for the periods from January 29, 2008 to December 2, 2010 and December 3, 2010 to May 19, 2011. Per the Joint Motion for Partial Remand, the Veteran withdrew his appeal of these determinations. Hence, the matters are no longer in appellate status and will not be addressed herein. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required on his part. REMAND In the Joint Motion for Partial Remand, the parties agreed that the Board erred when it failed to ensure that the Veteran's Social Security Administration (SSA) records were obtained, despite the fact that the Veteran had indicated that he was receiving SSA benefits. Since the records are potentially relevant to the Veteran's claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, the parties stated that VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Therefore, the appeal must be remanded to obtain the Veteran's complete SSA records. The parties also agreed that the Board was required to address whether the Veteran's part-time work as a greeter at Walmart constituted gainful or marginal employment as defined by VA regulation. See 38 C.F.R. § 4.16(a) (2012) (". . . marginal employment shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person."). In order to properly make this determination, additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. If the Veteran is in receipt of SSA benefits based upon age, and not disability, documentation thereof must be added to the claims file. 2. Ask the Veteran to submit copies of his earnings summaries (W-2 Forms) for the years 2008, 2009, 2010, 2011 and 2012 so there is objective evidence to ascertain whether his part-time work constituted gainful or marginal employment. 3. After the development requested above and any other development deemed necessary have been completed to the extent possible, the RO should review the record and readjudicate the claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. The RO must consider whether the Veteran's part-time employment as a "greeter" at Walmart constitutes gainful or marginal employment, as defined by VA regulation. If the benefit sought on appeal remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant 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. 2012). _________________________________________________ BARBARA B. COPELAND 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).