Citation Nr: 1332353 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 07-30 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and September 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge in August 2010; a transcript of that hearing is associated with the claims file. This case was last before the Board in December 2010, when the Board dismissed the prostate cancer appeal following the Veteran withdrawing that issue in an August 2010 correspondence. The Board additionally awarded the Veteran a 50 percent evaluation for his psychiatric disability in that December 2010 decision. The Board considers those issues to be final at this time and they will no longer be discussed. The Board, however, assumed jurisdiction over the TDIU claim on appeal at that time in order to comport with the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded that TDIU claim for further development at that time. That development having been completed, the case has been returned to the Board for further appellate review at this time. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The TDIU claim was readjudicated in a January 2012 supplemental statement of the case; in that supplemental statement of the case, it was noted that the Veteran did not respond to the December 2010 letter sent to him, including having not submitted the Application for Increased Compensation Based on Unemployability, VA Form 21-8940, enclosed with that letter. In February 2012, the Veteran submitted correspondence to the Board which included a VA Form 21-8940 dated January 2011, a release for private medical records from Dr. T.P.F., and January 2011 and February 2012 statements. First, the Board notes that there is no waiver of jurisdiction of the February 2012 correspondence and the evidence therein enclosed. Thus, the Board is unable to adjudicate at this time, given this lack of a waiver. Regardless, a remand is necessary in order for attempts to be made to obtain any ongoing records from Dr. T.P.F. Any ongoing VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the Board finds that a new VA examination should be obtained on remand which addresses whether the Veteran's service-connected disabilities currently preclude him from obtaining and maintaining employability, either singularly or in the aggregate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Pueblo Community Based Outpatient Center (CBOC), Denver VA Medical Center, or any other VA medical facility that may have treated the Veteran, since January 12, 2012, and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his service-connected disabilities, which is not already of record, to include any ongoing treatment with Dr. T.P.F. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file, particularly any records from Dr. T.P.F. since 2008. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA general medical examination. The examiner should review the claims file in conjunction with the examination. A detailed history of the Veteran's educational experience and occupational training and experience should be obtained. Following a claims file review and examination, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected prostate cancer residuals, including impotence secondary to prostate cancer, and posttraumatic stress disorder (PTSD) with associated depressive disorder, either singularly or in the aggregate, preclude substantially gainful employment. An explanation for each opinion expressed must be provided. The examiner should address the Veteran's work qualifications and employment history, as well as his level of education. Any opinion rendered should be without consideration of his age or any nonservice-connected disorders. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of entitlement for TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). _________________________________________________ N. SNYDER Acting 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) (2013).