Citation Nr: 1325220 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 06-34 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which continued 10 percent evaluations for chrondromalacia of the right and left knees. In May 2006, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in October 2006. In September 2010, the Board remanded the Veteran's increased rating claims, as well as a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), to the Appeals Management Center (AMC) for further evidentiary development, including obtaining any outstanding VA or private treatment records and providing the Veteran with a new VA examination for his knees. In October 2012, the Board denied the Veteran's claim for increased ratings for his service-connected knee disabilities and again remanded his TDIU claim to the AMC for further evidentiary development, including obtaining updated VA treatment records and readjudicating the claim in light of the July 2010 grant of service connection for posttraumatic stress disorder (PTSD). The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained updated VA treatment records and readjudicated the Veteran's TDIU claim in a May 2013 supplemental statement of the case. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the claims file, the Board finds that further evidentiary development is necessary prior to the adjudication of the Veteran's claim for TDIU. The Board sincerely regrets the delay caused by this additional remand but finds that the development requested herein is necessary prior to a final adjudication of the appeal. The Board's October 2012 remand noted that the Veteran was granted service connection for PTSD in a July 2010 rating decision. The AMC was directed to readjudicate his TDIU claim in light of this additional service-connected disability. The AMC readjudicated the claim in a May 2013 supplemental statement of the case. Although the supplemental statement of the case referenced the April 2010 VA PTSD examination, this examination report is not in the electronic or paper claims file for the Board's review. As such, the Board is unable to adjudicate the claim. Additionally, the Veteran's representative submitted a July 2013 informal hearing presentation (IHP). In the July 2013 IHP, the Veteran's representative indicated that there were outstanding VA psychiatric treatment records as well as outstanding Social Security Administration (SSA) records relating to the Veteran's claim for disability benefits. With regard to any outstanding VA treatment records, VA has an obligation under the VCAA to associate all relevant records in VA's possession with the claims file of a veteran. See 38 C.F.R. § 3.159 (2012). Moreover, as the Veteran's claim is for unemployability, SSA records relating to his employability are potentially relevant. Under the duty to assist, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, to include SSA. See 38 C.F.R. § 3.159(c)(2) (2012); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). When VA has actual notice of the existence of records held by SSA that appear relevant to the claim before VA, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). As the July 2013 IHP indicates that there may be outstanding SSA records that are relevant to the Veteran's appeal, the AMC should also attempt to obtain any relevant SSA records on remand. Finally, the Board notes that the Veteran has not received notice regarding what is necessary to substantiate a claim for TDIU, nor has he received the appropriate application for TDIU. On remand, he should be provided with such notice and application and be invited to complete the application with information regarding past employment and education. Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims file a copy of the April 2010 VA PTSD examination report. Also attempt to obtain and associate with the claims file any outstanding VA psychiatric treatment records from the Jackson VAMC, particularly from 2010 to the present, and any other VA facilities identified by the Veteran. If the RO/AMC is unable to secure any VA treatment records or the April 2010 VA examination report, it must notify the Veteran and his representative and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 2. Appropriate efforts should be taken to obtain a complete copy of the Veteran's SSA disability determination with all associated medical records. If, after making reasonable efforts, the AMC cannot obtain these records, it must specifically document what attempts were made to obtain the records, and indicate in writing that further attempts to locate or obtain any such government records would be futile. The AMC must then: (a) notify the Veteran and his representative of the records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran and his representative must then be given an opportunity to respond. 3. Provide the Veteran with the appropriate notice accompanied by the claims forms necessary to file and complete a TDIU claim. 4. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, such as a VA examination, if necessary, the claim of entitlement to TDIU should be adjudicated under 38 C.F.R. § 4.16(a), and include consideration of whether to submit the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). 5. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 2002 & Supp. 2012). _________________________________________________ JONATHAN B. KRAMER 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. See 38 C.F.R. § 20.1100(b) (2012).