Citation Nr: 1325611 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-45 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from July 1965 to July 1969, from February 2000 to November 2000, and from September 2003 to January 2005, with additional service with the National Guard. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board denied the instant claim in April 2011. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and, in July 2011, the Court issued an order granting a Joint Motion for Remand (Joint Motion), vacating the Board's April 2011 decision and remanding the Veteran's claim for further consideration. The Board thereafter, in April 2012 and January 2013, remanded the claim so that additional development of the evidence could be conducted. As set forth in more detail below, a remand is again unfortunately necessary with respect to the issue presently before the Board 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 Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Remand is also necessary to ensure the Veteran all applicable due process considerations. The Veteran contends that he is unable to continue employment as a corrections officer due to his service-connected disabilities. He is currently service-connected for degenerative disc disease of the lumbar spine, evaluated as 20 percent disabling; diabetes mellitus type II, evaluated as 20 percent disabling; right knee instability, evaluated as 10 percent disabling; postoperative residuals of a medial meniscectomy of the right knee, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; hypertension, evaluated as 10 percent disabling; residuals of a right ankle injury, evaluated as 10 percent disabling; degenerative changes of the left ankle, evaluated as 10 percent disabling; and hearing loss of the right ear, gastroesophageal reflux disease (GERD), and scar associated with right knee meniscectomy, each evaluated as noncompensable. His combined disability evaluation is 70 percent. See 38 C.F.R. § 4.25 (2012). The multiple orthopedic-based service-connected disabilities are to be considered in combination as one disability. See 38 C.F.R. § 4.16(a). Thus, the Veteran meets the minimum schedular criteria for consideration for the grant of TDIU pursuant to 38 C.F.R. § 4.16(a). Pursuant to the most recent remand, additional VA medical opinions or addendums were obtained. Review of the February 2013 VA general medical examination report shows that the completing physician commented that the Veteran had "told me that he applied for Social Security Disability in 2008-09 and was not found to be completely disabled." VA must obtain Social Security Administration (SSA) decisions and records which may have a bearing on a Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Contact SSA and request all documents pertaining to any claims submitted by the Veteran for disability benefits, and specifically request a copy of the decision awarding benefits and copies of the medical records upon which the SSA based its decision. If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 2. If additional records are obtained from SSA, schedule the Veteran for a VA examination to evaluate the status of his service-connected disabilities. The claims folder should be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings (such as range of motion studies and blood pressure readings) should be reported in detail. The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities, (right ear hearing loss; tinnitus; degenerative disc disease of the lumbar spine; diabetes mellitus type II; right knee instability; postoperative residuals of a medial meniscectomy of the right knee, including a scar; tinnitus; hypertension; residuals of a right ankle injury; degenerative changes of the left ankle; and GERD), either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to secure or maintain substantially gainful employment in light of his service-connected disabilities. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. After undertaking any other development deemed appropriate, the RO/AMC should readjudicate the issue of entitlement to a TDIU based on the entirety of the evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for future review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. 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 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). _________________________________________________ M. E. LARKIN 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).