Citation Nr: 1322879 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-45 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 16, 1986 to October 31, 1986, and from June 1987 to January 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. As the Veteran lives overseas, the appeal is now under the jurisdiction of the Pittsburgh RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is unable to obtain or maintain substantially gainful employment due solely to his service-connected disabilities. He filed his claim in August 2006. Private treatment records reveal that he was diagnosed with mantle cell lymphoma in May 2006 and that he was undergoing treatment that would require him to be out of work for at least a year. He applied for disability from the Social Security Administration (SSA) during that time. A September 2007 letter from the Office of Personnel Management (OPM) indicates that the Veteran became eligible for SSA benefits effective February 1, 2007. However, the records associated with the Veteran's application for such benefits are not in the claims file and must be obtained. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002); Baker v. West, 11 Vet. App. 163, 169 (1998). The Board further notes that a completed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, received from OPM in September 2008, shows that the Veteran retired on disability on November 24, 2006 but his disability benefits were only paid through August 31, 2008 as he was re-employed. However, the Board acknowledges the July 2011 arguments of the Veteran's representative that this evidence is an insufficient basis for a determination that the Veteran is employed in an occupation that is substantially gainful. The form from OPM indicates the Veteran had been a Contract Specialist, but offered no details regarding his current employment. As he reported on a VA Form 21-696c submitted in January 2011, the Veteran currently lives in Korea with an APO, AP mailing address of 411th CSB/CCK. A common internet search reveals that the 411th Contracting Support Brigade was activated in Korea in February 2008. Galen Putnam, 411th CSB Activates in Korea, http://www.army.mil/article/7695 (last visited July 16, 2013). Thus, it appears that the Veteran is employed in some capacity with the 411th Contracting Support Brigade. Therefore, the Veteran should ask that OPM, the 411th CSB, and any other employer he has had since 2008, complete a VA Form 21-4192 and submit the form to VA, so that VA has the necessary information to evaluate whether the Veteran's employment is substantially gainful. Finally, the Board observes that the Veteran was provided with a VA fee-basis examination in March 2007 with respect to his TDIU claim. The Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, while the examiner reported various activities that would be difficult for the Veteran, i.e. prolonged standing, bending, and lifting, the examiner did not specifically comment on the Veteran's ability to obtain and maintain substantially gainful employment. Therefore, the Board finds the opinion to be inadequate and another opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Request records from the SSA that are relevant to the Veteran's application for SSA disability benefits. All requests and responses, positive and negative, must be documented in the claims file. 2. Ask the Veteran to provide VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, to OPM, the 411th CSB, and any other employer since 2008 for completion and return to VA. All requests and responses, positive and negative, must be documented in the claims file. 3. Once all SSA and OPM documents have been obtained, forward the Veteran's claims folder to the VA fee-basis examiner who conducted the March 2007 examination or an equally qualified examiner if the former is unavailable. Request that the examiner provide an opinion as to the effects of the Veteran's service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, CONSIDERED IN COMBINATION, preclude him from securing and following substantially gainful employment consistent with his education and work experience as a Contract Specialist. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale must be provided for the opinion provided. If it is determined that an opinion cannot be formulated without another clinical examination of the Veteran, the examination should be scheduled. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full, the Veteran will be provided a supplemental statement of the case and an opportunity to respond in accordance with applicable statutes and regulations. The case should be returned to the Board for further appellate consideration, 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). _________________________________________________ U. R. POWELL 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).