Citation Nr: 1329971 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-05 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total disability rating based on individual employability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to February 1958. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which took temporary jurisdiction of the case from the Los Angeles, California, RO. In March 2013, the Veteran testified before the undersigned at the Los Angeles RO. A transcript of the hearing is of record. In September 2013, the Board reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system, which included CAPRI records printed in May 2013, which are current to December 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 While the Board sincerely regrets the additional delay of this appeal, a second remand is required before the claim for TDIU can be properly adjudicated. The Veteran maintains that a TDIU is warranted, maintaining that he is no longer able to work due to his service-connected disabilities, particularly his service-connected bilateral hearing loss. He is service connected for the following disabilities: bilateral hearing loss (40 percent), tinnitus (10 percent) and hypertrophy of tonsils (0 percent). At this point, the Board notes that the Veteran currently does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for TDIU. In statements of record, the Veteran has asserted that his hearing loss disability prevents him from successfully pursuing further education, that he lost his last job due to safety concerns stemming from his difficulty hearing, and that he has been unable to secure further employment due to his hearing loss. He has also asserted that his hearing aids, while somewhat helpful, are itchy and, therefore, he does not wear them continuously. See, e.g., March 2013 Board Hearing transcript. As pointed out in the prior Board Remand of May 2013, of record are documents indicating the Veteran was in receipt of vocational rehabilitation benefits (also described as home management), in addition to testimony to that effect provided by the Veteran at the March 2013 Board hearing (p. 8). At that point, the vocational rehabilitation file was not associated with the claims file before the Board and it was observed that as this might contain evidence relevant to his claim, a remand was required so that the vocational rehabilitation file could be obtained. Unfortunately, in the action paragraphs accompanying the May 2013 Remand, the Board, failed to include a request for the inclusion of the Veteran's vocational rehabilitation file with his other two claims folder. That oversight will be corrected herein and the vocational rehabilitation file will be specifically requested as mentioned in the March 2013 hearing transcript (p. 9). In the prior May 2013 Remand, the Board also noted that the record indicated that the Veteran was in receipt of benefits from the Social Security Administration (SSA), and sought to obtain evidence, specifically records relating to his claim, from the SSA. Subsequently, SSA was contacted and after a search for pertinent records provided a reply to VA received in May 2013, to the effect that medical records relating to the Veteran's SSA application and decision had been destroyed. Subsequently, the Veteran himself provided for the file SSA benefit information which revealed that he was determined to be disabled as of October 1998; however the actual SSA disability determination was not provided and the nature of the disability supporting the award of SSA benefits is not clear. Given that some SSA evidence has been provided for the file, the Board believes that both SSA and the Veteran should be contacted in order to attempt to retrieve a copy of the SSA decision relating to the award of disability benefits to the Veteran. 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that if there is a reasonable possibility that SSA records are relevant to a claim, VA is required to assist the claimant in obtaining the identified records). In the prior Remand of May 2013, the Board requested that updated VA treatment records (May 2009 forward) be obtained and associated with the file. A review of the Veteran's paperless claims folder shows that VA CAPRI records were printed in May 2013 which are current to December 2012. As the case is being remanded for other reasons, the Veteran's VA records dated from December 2010 forward will be requested. The Veteran should also be given the opportunity to submit any additional private records in his possession, to include a hearing evaluation referenced at the 2013 Board hearing (p. 8), although it appears that this may be evidence associated with the vocational rehabilitation file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Afford the Veteran another opportunity to submit any information that is not evidenced by the current record. Provide him with forms authorizing the release of any identified outstanding private treatment records. Any available records must be associated with the claims file. If the records are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Contact the Social Security Administration to request a copy of the decision awarding disability benefits for the Veteran. If the decision itself is unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain this evidence, in accordance with 38 C.F.R. § 3.159(e). Should the decision be unavailable, contact the Veteran and request that he provide a copy of the SSA disability determination, should he have it in his possession. 3. Obtain any outstanding records of evaluation and/or treatment of the Veteran from VA, to include the Loma Linda VAMC, from December 2012, forward. In addition, associate with the claims folders the Veteran's vocational rehabilitation file/records (also described as home management), for inclusion in the record to be provided for the Board. All records and/or responses received should be associated with the claims file. 4. Readjudicate the issue on appeal, to include whether the Veteran is entitled to TDIU on a schedular or extraschedular basis. If the benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, 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). _________________________________________________ MARJORIE A. AUER 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).