Citation Nr: 1329325 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 05-15 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from July 1967 to September 1991. This matter was initially addressed by the Board of Veterans' Appeals (Board) in September 2011 at which time the Board remanded two claims for increased ratings and determined that a TDIU claim had been "reasonably raised by the record." See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a February 2013 decision, the Board decided the increased rating claims and remanded the TDIU claim again. The record includes an assertion of clear and unmistakable error (CUE) in a November 1992 rating decision which denied service connection for a lumbar spine disorder. See July 2013 Written Brief Presentation. This assertion of CUE has not yet been addressed by the RO in the first instance; the Board does not have jurisdiction to address the Veteran's CUE claim. As such, this issue is referred to the RO for its consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995). Also as part of the July 2013 Written Brief Presentation it appears that the Veteran is seeking to reopen a previously denied claim (see March 2004 rating decision) for service connection for diabetes. This issue is also referred to the RO for its consideration. 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 As noted, this issue was last remanded in February 2013. In July 2013, the Veteran informed VA of the existence of certain specifically-identified private medical records. See July 2013 letter from Veteran. These records were noted to include treatment provided by his pain doctor, Dr. W., to alleviate back pain. The name and address of the medical practice was also included, as was the name of an advanced practice registered nurse. The Veteran added these medications worked together to control pain in his hands, back, and legs. The Veteran is service-connected for finger-related disorders. The Veteran also mentioned the name of a "previous" civilian care doctor, Dr. Y. A March 2012 VA outpatient treatment record shows that the Veteran informed the examiner that he saw Dr. Y. There are no medical records associated with treatment by these above-cited private medical providers of record. These yet-to-be-obtained private medical records may contain information critical to the matter at hand, and VA regulations require VA to assist in obtaining such records. 38 C.F.R. § 3.159(c)(1) (2012). Accordingly, in the event that VA is successful in obtaining the above-mentioned private medical records pursuant to this remand, an addendum should be sought to the April 2013 VA medical examination and opinion. See also May 2013 VA addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain all records associated with treatment provided the Veteran by private physicians, Drs. W. and Y. See July 2013 letter from Veteran for address information. To assist in acquiring these private medical records, the RO/AMC should provide the Veteran copies of VA Form 21-4142 (Authorization and Consent to Release Information). Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(1). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 2. After the above-ordered development has been completed to the extent possible, the RO/AMC should return the claims file, including a copy of this remand, to the April 2013 VA examiner. The examiner should comment on the functional impact of the Veteran's service-connected disorders (hypertension, coronary artery disease, right thumb trigger finger release residuals, left fourth trigger finger residuals, and right index finger tenosynovitis). The examiner should opine as to the specific effect of the Veteran's service-connected disorders on his ability work, including whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's service-connected disorders, either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. 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. 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 supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for future review. 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 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). _________________________________________________ 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).