Citation Nr: 1337505 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-17 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in March 2013. A transcript of that hearing is of record. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless and VBMS claims files shows a copy of the transcript of the March 2013 hearing, but does not reveal any other additional documents pertinent to the present appeal. The Board does note that the Veteran and his representative have submitted additional evidence that has not been considered by the RO. However, they submitted a waiver of the RO's initial consideration of such evidence. 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 The Veteran testified at his March 2013 hearing that he applied for and is in receipt of disability benefits from the Social Security Administration (SSA), but he could not recall what disabilities were considered in that determination. The claims file does not contain a copy of the decision to grant benefits or the records upon which that decision was based. Under 38 U.S.C.A. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. Where there has been a determination that a veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Therefore, the RO/AMC should attempt to obtain the Veteran's SSA records. Additionally, any VA vocational rehabilitation records and any ongoing VA or other private treatment records should also be obtained and associated with the claims file. 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). The Board also notes that a vocational rehabilitation infeasibility determination was completed in May 2013. The counselor concluded that the Veteran's health-related issues render him infeasible to achieve a vocational goal and therefore unemployable. However, the vocational rehabilitation counselor considered both the Veteran's service-connected and nonservice-connected disabilities in reaching her conclusions. The central inquiry in a TDIU claim is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); see also Van Hoose v. Brown, 4 Vet. App. 361 (2013). Therefore, after obtaining any available, outstanding records, a VA medical opinion is necessary prior to adjudicating this TDIU claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected disabilities. After acquiring this information and obtaining any necessary authorization, obtain and associate these records with the claims file. The RO/AMC should also secure any outstanding VA medical records. 3. The RO/AMC should obtain and associate with the claims file the Veteran's complete VA vocational rehabilitation folder. 4. After completing the above actions, the Veteran should be afforded a VA examination to determine the effect of his service-connected disabilities on his employability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is currently service-connected for diabetes mellitus with hypertension, peripheral neuropathy of the upper and lower extremities, cataracts of both eyes, and erectile dysfunction. The examiner should discuss the combined effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities are of such severity to result in unemployability. It should be noted that consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the above actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).