Citation Nr: 1326104 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-21 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1974 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota (RO), which denied the benefit sought 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 Presently, the Veteran is service-connected for asthma disability, rated as 60 percent disabling. He contends that his service-connected disability renders him unemployable. Thus, he seeks entitlement to TDIU. Based on a review of the record, the Board finds that additional development is needed prior to adjudication of the claim. The Veteran's service-connected asthma disability satisfies the percentage requirements set forth in 38 C.F.R. § 4.16(a). The remaining question on appeal is whether the Veteran is he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability. Social Security Administration Records During a September 2009 VA Vocational Rehabilitation counseling session, the Veteran informed his VA counselor that he had applied for Social Security Administration (SSA) disability insurance (SSDI) benefits. These records may be pertinent to the appeal as the claim involves entitlement to TDIU. Therefore, on remand, any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim should be obtained. See 38 U.S.C.A. § 5103A(1); 38 C.F.R. § 3.159(c)(2) (2012); see also Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA that appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). VA Examination It is unclear from the record whether the Veteran is unemployable solely due to his service-connected asthma disability as opposed to his multiple nonservice-connected disorders (e.g. residuals of stroke, diabetes mellitus, and arthritis of multiple joints). The Veteran should be afforded a VA examination with opinion to determine whether he is unemployable solely due to his service-connected disability. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should be requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected asthma disability on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disability alone is of such severity as to result in unemployability (as opposed to his nonservice-connected disorders). 38 C.F.R. § 4.16 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the Social Security Administration decision regarding disability benefits for the Veteran. All the medical treatment records from the Social Security Administration that were used in considering the Veteran's claim for disability benefits should be obtained and associated with the claims file. Any negative development should be discussed and addressed in the claims file. 2. Then, the Veteran should be scheduled for a TDIU examination to determine the nature, extent and severity of all his service-connected asthma disability. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported. Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of the combination of his service-connected asthma disability (as opposed to his nonservice-connected disorders). The examiner should explain the rationale for any opinion given regarding the effect of the Veteran's service-connected disorders on his ability to obtain or maintain employment, to include discussion of obstacles and challenges he might face, and his capability for performing sedentary employment. The examiner should consider the Veteran's education, experience, and occupational background in determining whether he is unable to secure or follow a gainful occupation in light of his service-connected disability. To the extent possible, the examiner should distinguish symptoms and impairment attributable to the Veteran's service-connected disorder from those attributable to any other diagnosed disorders. In doing so, the examiner should reconcile any of the other previous VA opinions of record. The examiner should provide a rationale for the opinion, based on clinical experience and medical expertise. 3. After conducting any additional development deemed necessary, readjudicate the claims, considering all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ DAVID L. WIGHT 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).