Citation Nr: 1318837 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-24 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO). The case was subsequently transferred to the RO in Portland, Oregon, which certified the issue for appeal. A Board hearing was held before a Veterans Law Judge in September 2009 at the RO, and a transcript of the hearing is of record. In correspondence dated in April 2012, the Veteran was notified that the Veterans Law Judge that held the Board hearing in September 2009 was designated as the Acting Chairman of the Board and was therefore unable to consider the Veteran's appeal. The Veteran requested a new hearing. In June 2012, the claim was remanded to afford the Veteran a new Board hearing. In September 2012, the Veteran testified before the undersigned. A transcript of the hearing is of record. In October 2012, the claim was again remanded for further evidentiary development. The requested development was partially completed, and the case has been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center, in Washington, D.C. VA will notify the Veteran if further action on his part is required. REMAND The Veteran seeks entitlement to TDIU. Before the Board can adjudicate this claim on the merits, additional development is required. As noted in the Introduction, in October 2012, the Board remanded the claim for additional evidentiary development to include for the AOJ to obtain the Veteran's VA Vocational Rehabilitation folder. In November 2012, the AOJ contacted the Vocational Rehabilitation and Education Center in Portland, Oregon, in an attempt to locate the Veteran's folder, but received a negative response by email later that month. In a January 2013 letter, the AOJ informed the Veteran that the files were unavailable, and encouraged him to submit any relevant files he may have in his possession or identify the location of the folder. The Veteran did not respond to this request. In February 2013, the AOJ associated with the claims file a memorandum of formal finding of unavailability, stating that all efforts to obtain the records had been exhausted. On review of the electronic file, however, the Veteran reported in a February 2013 VA outpatient appointment that his Vocational Rehabilitation file was located in Idaho because he was previously performing work/study with the Regional Office there. The nurse to whom he reported this information requested that his treating mental health social worker contact a representative at the Portland RO to assist in obtaining his file. As the location of the Veteran's Vocational Rehabilitation folder has been identified in the electronic record, and the AOJ has not yet contacted the RO in Boise, Idaho, the claim must again be remanded for the records to be obtained and considered in the adjudication of the Veteran's claim. See 38 C.F.R. § 3.159(c)(2) (2012); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that a remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's entire Vocational Rehabilitation file from the Boise, Idaho, RO (or any other location identified by the Veteran). In addition to information contained in the Vocational Rehabilitation file, any report regarding infeasibility of training should be obtained. If the records remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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). _________________________________________________ Donnie R. Hachey 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).