Citation Nr: 1339315 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 12-31 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Lauren Murphy, Agent ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from November 1995 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In March 2012, the Veteran testified at the RO before a Decision Review Officer (DRO) hearing. A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran submitted in February 2013 a VA Form 21-8940 (Application for Increased Compensation based on Unemployability) wherein he reported history of his disability, employment, and education. This evidence has not been previously considered by the RO in adjudicating the issue of entitlement to a TDIU. This evidence is relevant to the issue being addressed in this appeal, and the Veteran's representative specifically indicated that RO consideration of this additional evidence is not waived. Accordingly, the Board must return this matter to the RO for consideration of the additional evidence and issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2012). In his VA Form 21-8940, the Veteran indicated that he has been treated for his service-connected psychiatric and low back disabilities at the VA Medical Center in West Haven, Connecticut, as recently as January 2013. However, the most recent VA treatment records currently associated with the claims file is dated October 2012. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the case must be remanded for the RO to obtain and associate with the claims file all updated VA treatment records dated from October 2012 to the present. Additionally, the Veteran submitted a July 2012 letter from his VA Rehabilitation Counselor stating that the Veteran's vocational rehabilitation program has been interrupted because he is currently being treated for a medial conditional that has interfered with his training. When the evidence indicates that the Veteran has been seen by the Vocational Rehabilitation and Employment Service, the Board is on notice of the existence of those records and is obliged to obtain and consider them. See Moore v. Gober, 10 Vet. App. 436 (1997). Based on the above, the Board finds that a remand is warranted in order to attempt to obtain the Veteran's Vocational Rehabilitation counseling folder, if it exists. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated VA treatment records from the VA Medical Center (VAMC) in West Haven, Connecticut, and any associated outpatient clinics dated from October 2012 to the present. All records and/or responses received should be associated with the claims file. 2. Ascertain whether there exist any records of the Veteran receiving VA Vocational Rehabilitation counseling. If so, any VA Vocational Rehabilitation counseling file, or other such records, must be obtained and associated with the claims folder. 3. After any pertinent outstanding records are added to the claims file, the RO must readjudicate the Veteran's claim on appeal, taking into consideration all newly acquired evidence associated with the claims file, to include VA Form 21-8940 (Application for Increased Compensation based on Unemployability) received in February 2013. If the benefit sought on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran, which must address all of the evidence of record since that issue was last adjudicated by the RO. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. 2013). _________________________________________________ U. R. POWELL 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).