Citation Nr: 1326432 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-15 284 ) 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 (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1961 to March 1965 and from October 1967 to August 1983. He received the Combat Infantry Badge, Air Medal, Bronze Star Medal, and Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO denied entitlement to a TDIU. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 United States Court of Appeals for Veterans Claims (Court) has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect a veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Although there are various opinions of record concerning the impact of the Veteran's individual service-connected disabilities on his employability, there is no specific opinion as to whether his service-connected disabilities, in combination, are sufficient to prevent him from securing and following employment for which his education and occupational experience would otherwise qualify him. Thus, a remand is necessary to obtain a new opinion as the combined impact of the Veteran's service-connected disabilities on his employability. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In this case, a February 2011 VA psychiatric treatment note reveals that the Veteran was scheduled for a follow up psychiatric evaluation in May 2011. The most recent VA treatment record in the claims file are contained in the Jackson Vista electronic records system and are dated to April 2011. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability, a cardiac disability, bilateral knee disabilities, diabetes mellitus, a kidney disability, bilateral ankle disabilities, tinnitus, hearing loss, a left 4th finger disability, a left eye disability, and erectile dysfunction contained in the Jackson Vista electronic records system and dated from April 2011 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination with a physician with appropriate expertise to determine whether his service-connected disabilities prevent him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (posttraumatic stress disorder; arteriosclerotic heart disease, status post myocardial infarction, and angina; bilateral traumatic arthritis of the knees; type II diabetes mellitus; diabetic nephropathy; bilateral traumatic arthritis of the ankles; tinnitus, left ear hearing loss; synovitis of the left 4th finger; pterygium, postoperative resection of the left eye; and erectile dysfunction ) would, in combination and without regard to any non service-connected disabilities, prevent him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him? The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ shall review the examination report to ensure that it contains the information and opinion requested in this remand (i.e. a single opinion as to the combined impact of all the Veteran's service-connected disabilities on his employability) and is otherwise complete. 4. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given opportunity to respond, the case shall be returned 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). _________________________________________________ J. A. MARKEY 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).