Citation Nr: 1307350 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 03-31 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1974 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously remanded this claim in April 2006, August 2007, and April 2008. In an August 2009 decision, the Board denied entitlement to a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2011 memorandum decision, the Court vacated the Board's August 2009 decision and remanded the matter for further proceedings. In February 2012, the Board remanded the Veteran's claim for additional development. The case has been returned to the Board for further review. The Veteran testified at a hearing before a Decision Review Officer (DRO) in August 2003. The transcript is associated with the claims file. 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 In February 2012, the Board remanded the Veteran's claim to request that the Veteran submit any relevant employment records in his possession, including evidence of any employment income since January 7, 2004, and documentation of any job termination. The AMC was then asked to readjudicate the Veteran's claim with application of the provisions of 38 C.F.R. § 4.16(a) pertaining to a requirement that the Veteran's service-connected pes planus of the right foot (rated as 40 percent) and service-connected pes planus of the left foot (rated 30 percent), as disabilities of both lower extremities, be considered one 60 percent disability. The record shows that the Veteran was sent a notification letter in February 2012 requesting any records in his possession. The AMC requested updated VA treatment records and issued a supplemental statement of the case (SSOC) in January 2013, readjudicating the Veteran's claim for a TDIU. Therefore, the remand directives were completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, in the February 2013 post-remand brief, the Veteran's representative stated that the Veteran submitted additional evidence directly to the Detroit, Michigan RO in March 2012 and January 2013 that was not considered in the January 2013 SSOC. The evidence submitted by the Veteran in March 2012 and January 2013 has now been associated with the claims file. In March 2012, the Veteran submitted a signed VA Form 21-4142, indicating VA medical treatment for several disabilities including his service-connected disabilities. The Veteran also submitted a statement and notification of disciplinary actions from his prior employer and pay statements. In January 2013, the Veteran submitted an award letter from the Social Security Administration (SSA). This evidence was not considered by the January 2013 SSOC; however, the February 2013 brief shows that local jurisdiction of all evidence submitted in March 2012 and January 2013 was waived in order to allow review by the Board. See 38 C.F.R. § 20.1304(c) (2012). In reviewing the submitted evidence, the Board finds that the Veteran's claim must be remanded. As noted above, the Veteran submitted an award letter from the SSA in January 2013. The award letter reveals that the Veteran has received monthly disability benefits from Social Security beginning in July 2011. There are no SSA records associated with the claims file and there is no indication that VA has attempted to obtain the records. While SSA records are not controlling for VA determinations, when VA is put on notice of the existence of SSA records, and they may be pertinent to a VA claim, VA must seek to obtain those records before proceeding with the appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Therefore, VA must attempt to obtain the Veteran's complete SSA records. In addition, as the Veteran has indicated ongoing VA treatment, the Board finds that updated VA medical treatment records from the Detroit, Michigan VA Medical Center (VAMC) should be obtained and associated with the claims file. Finally, since the Veteran's claim is being remanded for additional development, the Board finds that a new VA examination should be provided with respect to the Veteran's claim for a TDIU. As noted in the Board's February 2012 remand, the Veteran's service-connected pes planus of the right foot (rated as 40 percent disabling) and service-connected pes planus of the left foot (rated as 30 percent disabling) meet the schedular requirements of 38 C.F.R. § 4.16(a). The Veteran was last afforded a VA examination in August 2006 and the examiner provided an opinion regarding the Veteran's employability. However, as this was more than 6 years ago and the Veteran is now unemployed (he was employed at the time of the August 2006 VA examination), the Board finds that a new VA examination should be provided. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and request a copy of all materials, to include medical records, related to the Veteran's claim for SSA disability benefits. Once obtained, associate these records with the claims file. If SSA notifies VA that these records are unavailable, place a copy of this notification in the Veteran's claims file and notify the Veteran. 2. Obtain updated VA treatment records from the Detroit, Michigan VAMC from November 2012 to the present. Notify the Veteran of any unsuccessful efforts and/or negative response. 3. Schedule the Veteran for a VA examination with respect to his claim for a TDIU. All indicated tests and studies should be conducted and all findings described. The examiner should elicit a history of relevant symptoms from the Veteran. The claims files must be made available to the examiner for review and the examination report should reflect that such review was accomplished. The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the service-connected disabilities, considered in combination, preclude obtaining or maintaining a substantially gainful occupation, considering the Veteran's education and occupational experience, but without consideration of his age. A rationale for the opinion given should be provided. 4. Readjudicate the issue of entitlement to a TDIU with consideration of all additional evidence not previously considered, to include employment records received in March 2012. If the benefit sought remains denied, issue a supplemental statement of the case, and afford the appropriate period to respond, prior to returning the matter 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). _________________________________________________ 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) (2012).