Citation Nr: 1318918 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-46 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from October 1980 to March 1981 and from August 1981 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Togus, Maine. In that decision, the RO denied a claim for a TDIU. In March 2013, the Veteran testified before the undersigned at a Board hearing. A copy of the transcript is associated with the file and has been reviewed. 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 At the March 2013 Board hearing, the Veteran stated that he was currently in his second attempt at vocational rehabilitation at VA. (Transcript, p 15.) VA has an obligation to obtain relevant VA records. 38 U.S.C.A. § 5103A(c) (West Supp. 2013). In addition, efforts to obtain records in Federal custody must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. 38 U.S.C.A. § 5103A(b)(3) (West Supp. 2013). While the vocational rehabilitation folder is currently associated with the file, updated records are needed. It was also noted at the hearing that the Veteran currently met percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) (2013). (Transcript, p 18.) In the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). However, the last VA examination report from January 2010 does not offer a direct opinion on the issue of employability. A medical opinion is necessary to make a determination regarding entitlement to TDIU because there are indications that the service-connected cold injury residuals are interfering with the Veteran's ability to obtain and maintain substantially gainful employment. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 4.16. The file should be sent to the appropriate examiner(s) as directed by the January 2010 VA examiner and the examiner(s) should note that where the record does not separate the effects of a service-connected disability from the effects of a non-service-connected disability, the effects must be attributed to the service-connected disability or a medical determination must be obtained. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, the case is REMANDED for the following action: 1. First, associate more recent VA vocational rehabilitation records with the file. Current vocational rehabilitation records in the file date to September 2012 and indicate an anticipated completion date of January 2013. Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. If any requested records cannot be obtained, inform the Veteran; and tell him of the efforts made to obtain the records and of any further actions that will be taken with regard to the claim, including the possibility that the claims will be denied. 2. After the above development is completed, the Veteran should be afforded an examination in order to obtain an opinion as to whether his service-connected disabilities in combination preclude substantially gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should review the claims folder, including any relevant records stored in an electronic format; and provide reasons for the opinion given. The examiner should reference: * The September 2012 VA vocational rehabilitation counseling narrative which noted vocational impairments and a serious employment handicap; * 2004 and 2007 resumes of the Veteran; * A June 2002 VA history and physical examination of the Veteran; * An August 2003 Chapter 31 evaluation of the Veteran; * The July 2007 VA vocational rehabilitation narrative noting physical limitations due to service-connected disabilities; difficulty with basic academic skills; past pursuit of occupations; and the counselor's opinion on impairment of employability; and * The past VA examinations. The examiner should provide an opinion as to whether it is at least as likely as not that the service connected disabilities in combination would preclude gainful employment for which the Veteran would otherwise be qualified. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide reasons why it is not possible to provide the necessary opinion; and state whether the inability is due to missing evidence or a the limits of medical knowledge. 3. If the decision remains in any way adverse to the Veteran, issue a supplemental statement of the case (SSOC). The case should then be returned to the Board, if otherwise in order. 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).