Citation Nr: 1325866 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-16 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant (Veteran) represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from July 1968 until July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that it has reviewed the claims file, to include documents of record that have been included in the virtual VA folder. No new relevant evidence has been included in the claims file since the Statement of the Case (SOC) dated in May 2011. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). 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. In two previous remands, the Board referred to the RO the issue of service connection for tinnitus, which has been raised by the Veteran and his representative in multiple statements of record. As the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over the issue. The issue is therefore referred to the AOJ for appropriate action. The Board further refers to the AOJ an issue regarding nonservice-connected pension benefits, which the RO granted in a May 2011 rating decision. In a statement dated soon after the May 2011 rating decision, the Veteran stated that he is "withdrawing my claim for pension." REMAND In a May 2011 statement, the Veteran indicated that he received benefits from the Social Security Administration (SSA). The record does not indicate an attempt to obtain records, reports, or decisions related to a claim for SSA disability benefits. Remand is warranted so that any such documentary evidence may be included in the claims file. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Any outstanding VA treatment records should also be included in the claims file. The most recent VA treatment records are dated in May 2011. Further, the Veteran should undergo a new VA compensation examination into the issue of his unemployability, which he asserts is primarily due to his service-connected posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling. The Veteran is also service connected for bilateral hearing loss, which is rated as noncompensable. 38 C.F.R. §§ 4.16(a), 4.25 (2012). The most recent medical inquiry into the Veteran's medical status was conducted in March 2010, over 3 years ago. In subsequent statements of record, the Veteran and his representative indicate that the examiner did not have all the facts concerning his previous employment. While the examiner indicated that the Veteran was unable to work due to a nonservice-connected hand disability, the Veteran reported in his May 2011 substantive appeal that he was able to do siding work, even though it was not regular work, for about 10 years after he hurt his hand. A new examination is therefore warranted. Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims folder any outstanding VA treatment records. The most recent VA treatment records of file are dated in May 2011. If no additional VA treatment records exist, the claims file should be documented accordingly. 2. Request, directly from the SSA, complete copies of any adjudications, including re-adjudications, with respect to any claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating or readjudicating any such claim(s). All attempts to fulfill this development should be documented in the claims file. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. After the above development is completed, schedule a VA examination into the Veteran's claim for a TDIU. 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 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 (PTSD and bilateral hearing loss) from obtaining and/or maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner is advised that only symptoms 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 or circumstances should not be considered in this determination. The examiner should explain the reasons behind any opinions provided. The examiner's attention is directed to the Veteran's May 2011 statement that he was able to do siding work, although the work was not regular, after he injured his hand. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 4. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if deficient in any manner. 5. Then, after ensuring the examination report is adequate and undertaking any additional development action that is deemed warranted, readjudicate the claim. If the claim remains denied, issue a supplemental SOC and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ S.S. TOTH 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).