Citation Nr: 1339600 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 07-24 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). The case was subsequently transferred to the RO in Portland, Oregon, which certified the issue for appeal. A Board hearing was held before a Veterans Law Judge (VLJ) in September 2009 at the RO, and a transcript of the hearing is of record. In correspondence dated in April 2012, the Veteran was notified that the VLJ that held the September 2009 Board hearing was designated as the Acting Chairman of the Board and was therefore unable to consider the Veteran's appeal. The Veteran requested a new hearing. In June 2012, the claim was remanded to afford the Veteran a new Board hearing. In September 2012, the Veteran testified before the undersigned. A transcript of the hearing is of record. In October 2012 and June 2013 the claim was again remanded for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran seeks entitlement to TDIU. Unfortunately, before the Board can adjudicate this claim on the merits, additional development is required. I. Vocational Rehabilitation File In October 2012 and June 2013, the Board, in pertinent part, remanded the Veteran's claim to obtain his vocational rehabilitation file as the record indicated that he had done Chapter 31 training until July 2008. An August 2013 Supplemental Statement of the Case (SSOC) states that the AOJ obtained and reviewed the vocational rehabilitation file and associated it with the claims folder. However, the only records related to vocational rehabilitation in the Veteran's Virtual VA and VBMS eFolders are from the 1970s, early 1980s, and an application submitted in May 1996. The Veteran's VBMS eFolder indicates that a vocational rehabilitation claim was opened in September 2003; however, the record does not contain any vocational rehabilitation related documents from September 2003 forward. Therefore, despite what is indicated by the August 2013 SSOC, it does not appear to the Board that the vocational rehabilitation folder has been associated with the Veteran's VBMS eFolder or otherwise associated with his claims file. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). On remand, the AOJ must appropriately associate the vocational rehabilitation folder with the Veteran's claims file. If this is not possible, or if the education records currently in the VBMS eFolder reflect the full and complete vocational rehabilitation folder, the AOJ must provide an explanation of such for the record. II. VA Treatment Records The record reflects the Veteran receives VA treatment for his service-connected psychiatric disorder and lumbar and cervical spine disabilities. The most recent VA treatment records associated with the claims file are from February 2013. Therefore, all updated pertinent VA treatment records should be obtained. III. Social and Industrial Survey The record currently does not provide sufficient evidence for the Board to determine how the Veteran's service-connected disabilities affect his employability. See Floore v. Shinseki, No. 12-2017, 2013 WL 5913227, at *4 (Nov. 5, 2013) (finding that the need for a combined-effects medical examination report or opinion in a multiple-disability TDIU claim is to be determined on a case-by-case basis). Therefore, the Board finds that a social and industrial survey would be of considerable help in resolving this question. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records dated from February 2013 to the present. If any of the records requested 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. Ensure that the vocational rehabilitation folder the AOJ indicated was reviewed in the August 2013 SSOC is appropriately associated with the Veteran's claims file (either in paper or electronic format). If such association is not possible, or if the education records currently in the VBMS eFolder reflect the full and complete vocational rehabilitation folder, provide an explanation regarding such for the record. 3. After completing the development requested in items 1-2, schedule the Veteran for a Social and Industrial Survey with respect to all of his service-connected disabilities. The entire claims file (i.e., including the Veteran's VBMS eFolder, any relevant medical records in the Veteran's Virtual VA eFolder, and the vocational rehabilitation folder) should be made available to and be reviewed by the social worker in conjunction with this request. A complete employment history of the Veteran should be obtained, inclusive of the last date of full-time and/or part-time employment. An assessment of the Veteran's day-to-day functioning should be made. The social worker is requested to answer whether it is at least as likely as not (i.e., a degree of probability of at least 50 percent or higher) that the Veteran's service-connected disabilities alone, and without consideration of his age or nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The social worker is advised that if the answer to this question is in the negative, he or she must discuss the type or types of employment in which the Veteran would be capable of engaging, given his skill set and educational background. A report of the opinion should be prepared and associated with the Veteran's VA claims file. A comprehensive rationale must be provided for all opinions rendered. If the social worker cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with an SSOC and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2013). _________________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).