Citation Nr: 1322430 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-09 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1985. This matter comes to the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran was afforded a Central Office hearing before the Board in June 2013. A transcript of the testimony offered at this hearing has been associated with the record. In his substantive appeal to the Board, received in March 2010, the Veteran raised the following issues: whether new and material evidence has been received to reopen a claim for service connection of human immunodeficiency virus (HIV); entitlement to service connection for chronic fatigue syndrome, headaches, irritable bowel syndrome (IBS), herpes zoster, peripheral neuropathy, and chronic obstructive pulmonary disorder (COPD)/emphysema; and entitlement to increased evaluations for prostate cancer residuals and for right inguinal hernia. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 his Board hearing, the Veteran testified that he had last been employed in August 2008 as a computer network engineer. He related that since 2008 he had been receiving disability compensation and that he had left his job as his service-connected prostate cancer and residuals had interfered with his work to the point where he was unable to do so. He stated that prior to leaving his job, he had to miss as many as 2 to 3 days per week due to bowel and urinary incontinence. Service connection is in effect for prostate cancer, evaluated as 60 percent disabling, and for erectile dysfunction and a right inguinal hernia, each evaluated as noncompensable (zero percent) disabling and both of which are residuals of his prostate cancer. He meets the minimum schedular requirements for consideration of a TDIU. 38 C.F.R. § 4.16(a). A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2012). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age, or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. At his Board hearing, the Veteran requested that the matter be remanded to afford him a VA examination at the Atlanta VA Medical Center (VAMC), to address his claim for a TDIU. He was last afforded a VA examination in May 2008. He has presented evidence indicating that his prostate cancer residuals have increased in severity and further that they prevent him from obtaining and maintaining substantially gainful employment. See March 2008 letter from S.L.A., M.D., J.D. Therefore, the Board will afford the Veteran a VA examination for the proper assessment of this claim. 38 U.S.C.A. § 5103A (West 2002). As such, this issue must be remanded in order to schedule the Veteran for a VA examination to determine whether he is precluded by reason of service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). At his Board hearing the Veteran testified that he had received recent treatment at the VAMC in Atlanta, Georgia. Records dated from February to November 2009 have been associated with the claims file from the Atlanta VAMC. 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); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, the Board finds that VA must attempt to obtain any VA records not currently associated with the claims file, particularly any dated prior to approximately February 2009 and from approximately November 2009 forward. At his Board hearing the Veteran also testified that he had received recent treatment at the Walter Reed Army Medical Center, in Washington, DC. Some records from the Walter Reed Army Medical Center have been associated with the claims file, particularly records dated from 1990 to 1998, as well as records dated in September 2004 and September 2005. Accordingly, upon remand, attempts should be made to obtain any outstanding records from the Walter Reed Army Medical Center. VA is under a duty to make as many requests as are necessary to obtain records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records from the Atlanta, Georgia VAMC dated prior to approximately February 2009 and from approximately November 2009 forward. Perform any and all follow-up as necessary, to include requesting assistance from the Veteran in obtaining these records, and document negative results. 2. After securing any necessary release(s) from the Veteran, attempt to obtain the Veteran's medical records from the Walter Reed Army Medical Center, in Washington, DC dated from 1998 and on. Documentation of the results of these efforts, if negative, should be associated with the claims file. The Veteran is advised that he must cooperate fully with VA's efforts in this regard. See 38 C.F.R. § 3.159(c)(2). 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for an appropriate VA examination(s) for his claim for entitlement to TDIU at the Atlanta VAMC, if possible. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should elicit a history from the Veteran regarding his employment history and examine the Veteran thoroughly. After reviewing the file, noting the Veteran's reported history, and examining the Veteran, the examiner should render an opinion as to whether the Veteran is precluded by reason of his service-connected disabilities alone from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner is advised that only symptoms and manifestations related to the Veteran's service-connected disabilities should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities should be not be considered in this determination. 38 C.F.R. § 4.14. The examiner is asked to provide the underlying reasons for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Then, after conducting any additional indicated development, readjudicate the claim currently on appeal. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case and provide the appellant and his representative an appropriate period of time to respond before this case is returned to the Board. 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). _________________________________________________ BETHANY L. BUCK 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).