Citation Nr: 1318675 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 02-05 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU benefits). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from November 1991 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In September 2003, and again in June 2006, the Board remanded this matter for additional development. In July 2007, the Board issued a decision which denied the Veteran's claim of entitlement to TDIU benefits. The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2008, pursuant to a Joint Motion for Remand, the Court vacated the Board's July 2007 decision and remanded this case to comply with VA's duty to notify. In August 2008, the Board remanded this matter for additional development. In June 2010, the Board issued a decision which denied the Veteran's claim of entitlement to TDIU benefits. The Veteran timely appealed this decision to the Court. In March 2012, the Court issued a memorandum decision which vacated the Board's June 2010 decision and remanded this case for additional evidentiary development. In September 2012, the Board remanded this case for additional evidentiary development. The issue of entitlement to service connection for tension muscular headaches, secondary to service-connected degenerative arthritis of the cervical spine, has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to TDIU benefits. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The October 2012 VA disability benefits questionnaire (DBQ) general medical examination references findings from a November 2011 VA treatment report. The RO's February 2013 supplemental statement of the case references VA treatment records, dated from January 2012 to November 2012, from the VA medical center in Clarksburg, West Virginia. A review of the Veteran's claims file, along with his electronic Virtual VA claims file, failed to reveal any VA treatment records dated after January 2010. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Under these circumstances, the RO must obtain all of Veteran's identified medical treatment records. The medical opinions provided within the Veteran's October 2012 VA DBQ examinations were inconclusive on the issue of whether the Veteran is unable to obtain or retain employment solely due to his service-connected disabilities. Given the passage of time in this case, the RO must schedule the Veteran for a new VA examination to determine whether he is unable to obtain or retain employment solely due to his service-connected disabilities. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, is required. The Veteran has offered differing employment histories during the pendency of his appeal. On his original VA Form 21-8940, filed in June 2000, he reported having worked for three months as a server/runner at a restaurant. On his second VA Form 21-8940, filed in June 2002, he reported having only applied for a job at that restaurant. Additional notations in the claims file indicate that his employment at this place was longer than three months. Finally, subsequent notations in the file indicate that he has continued to work at times during the course of this appeal. Under these circumstances, the Veteran must submit an updated VA Form 21-8940 to clarify his employment history throughout the course of this appeal. Finally, the newly raised claim of entitlement to service connection for tension muscular headaches, secondary to service-connected degenerative arthritis of the cervical spine, must be resolved prior to further consideration of the claim for TDIU benefits. The claim for TDIU benefits is dependent upon consideration of the impact of all service-connected disabilities upon the ability to obtain or retain substantially gainful employment. Thus, the claim for service connection and the claim for TDIU benefits are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Take all appropriate actions required to adjudicate the Veteran's newly raised claim of entitlement to service connection for tension muscular headaches, secondary to service-connected degenerative arthritis of the cervical spine. The Veteran should be informed in writing of the resulting decision and his associated appellate rights. This issue is not on appeal unless there is a notice of disagreement and a substantive appeal filed. 2. Contact the Veteran to request that he complete and return an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran must identify all employment, including part-time and self-employment, since March 2000. 3. Ask the Veteran to identify all VA and non-VA medical care providers who have treated him for his service-connected disabilities since January 2010. All attempts to secure this evidence must be documented in the claims file by the RO. Regardless of the Veteran's response, updated treatment records, since January 2010, should be obtained from the VA medical center in Clarksburg, West Virginia. If these records cannot be obtained, a letter should be sent to the Veteran informing him of the steps taken to obtain the records, listing alternative sources, and requesting that he furnish any such records in her possession or to identify the possible location of such records. Documentation as to unavailable records, if this is the case, must be added to the claims file. 4. Schedule the Veteran for the appropriate examination to determine whether he is unable to obtain or retain employment solely due to his service-connected disabilities. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must provide accurate and fully descriptive assessments of all symptoms of the Veteran's service-connected disabilities. All indicated tests must be performed, and all findings reported in detail. The examiner must also elicit from the Veteran and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain substantially gainful employment due solely to his service-connected disabilities. A complete rationale for all opinions expressed must be given. 5. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 6. Review the examination report to ensure complete compliance with the directives of this remand. If deficient in any manner, implement corrective procedures. 7. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ DENNIS F. CHIAPPETTA 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).