Citation Nr: 1318991 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 06-24 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for herniated nucleus pulpous with degenerative disc disease of the thoracolumbar spine. 2. Entitlement to an evaluation in excess of 10 percent for right ulnar neuropathy. 3. Entitlement to an initial evaluation in excess of 10 percent for left upper extremity neuropathy. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from February 1984 to January 1995. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran was initially scheduled for a September 2009 hearing before the Board in Washington, D.C. The hearing was then rescheduled for January 2010; however, the Veteran failed to appear on the scheduled hearing date and neither he nor his representative has indicated a desire to reschedule. In May 2010 and March 2012, the case was remanded for further development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. 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 During a February 2012 VA social work risk assessment, the Veteran reported that he had applied for Social Security Disability Insurance (SSDI) three or four years previously and was denied. He said he was in the process of re-applying for SSDI benefits. He said he would provide copies of his records to the Social Security Administration (SSA), which he thought would help him in getting benefits. The outcome of that application is not on file. Thus, there is notice to VA or records that may be probative to this appeal. Records from SSA have not been provided by the Veteran and VA has not attempted to obtain these records. Pursuant to the duty to assist, these records should be requested. See 38 C.F.R. § 3.159(c)(2) (2012); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure SSA records if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). On remand, the RO should also obtain and associate with the claims file all outstanding VA medical records. While the claims file currently includes treatment records dated through March 2012 from the VA Medical Center (VAMC) in Baltimore, Maryland, more recent treatment records may now be available. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the 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). In various statements, the Veteran has asserted that he is unable to work because of his service-connected disabilities and the record shows that he has not worked since October 2003. Therefore, although not certified to the Board, the issue of entitlement to a TDIU is raised by the record and the RO must address this in conjunction with the increased rating issues on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following actions: 1. Obtain the SSA records pertinent to any claim filed by the Veteran for Social Security disability benefits, including a copy of any decision and copies of the medical records relied upon concerning that claim. If records are not obtained, the claims folder should contain documentation of the attempts made to obtain the records. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2012, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. All records and/or responses received should be associated with the claims file. 3. The RO should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). As necessary, the RO should consider the claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. Appropriate notice and development should be undertaken with regard to this issue. 4. Thereafter, the RO should readjudicate the claims. All applicable laws and regulations, and all evidence, to include in the electronic claims file and evidence received since the March 2013 supplemental statement of the case (SSOC) should be considered. If any benefit is not granted, the Veteran and his representative should be furnished with a SSOC and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ MICHAEL D. LYON 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).