Citation Nr: 1622208 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 12-01 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in pertinent part, denied entitlement to a TDIU. The Veteran testified at a March 2015 Board videoconference hearing before the undersigned Veterans Law Judge. Unfortunately, a transcript of the hearing could not be made due to a malfunction in the recording equipment. In May 2015, the Veteran was sent a letter notifying of this malfunction and asking him if he wanted another hearing. In a response later the same month, he declined to have another hearing and indicated that he instead wanted his appeal considered based on the existing evidence of record. In July 2015, the Board denied the Veteran's claim for entitlement to a TDIU. The Veteran appealed this denied claim. In March 2016, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) by counsel for the Veteran and VA, finding that the Board erred insofar as it failed to satisfy the duty to assist in this case. Specifically, the JMR stated that the Board erred by providing inadequate statements of reasons or bases to support its finding that no additional medical records were available and failing to discuss records from private examiners. The parties agreed that the record contained evidence showing that the Veteran received treatment at the Detroit and Macomb County Vet Centers since 2010, the Board did not discuss whether records from these Vet Centers may be relevant, whether the VA may have a duty to request these records, pursuant to its duty to assist, and there is no indication in the record that these records were requested. Therefore, the Court vacated the Board's decision denying entitlement to a TDIU, and remanded the matter to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, the Court granted the JMR, finding that the Board erred insofar as it did not obtain relevant medical records from two Vet Center facilities. Therefore, a remand is necessary to obtain these records. See 38 C.F.R. § 3.159(c)(2). In an April 2016 Informal Hearing Presentation, the Veteran's representative noted that the VA failed to satisfy its duty to notify as the VA was aware of the existence of potentially relevant private medical records from Silver Pine Family Physicians, care of Dr. S.T. and Dr. Z.L.. Each of these physicians wrote a favorable unemployability medical opinion for the Veteran and indicated that the Veteran was under their medical care for service-connected disabilities. Therefore, the VA must attempt to obtain a release for the records from the Veteran. 38 C.F.R. § 3.159(e). In May 2016, the Veteran submitted statements from his wife and treating private physician, S.T., on the current severity of his service-connected disabilities and the impact of those disabilities on his employability. In light of these statements, the Board finds that an updated VA examination is needed to assess the impact of the Veteran's numerous service-connected disabilities on his ability to obtain and maintain sedentary employment. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the Detroit and Macomb County Vet Centers since 2010, and associate them with the record. 2. Contact the Veteran and request the appropriate release to obtain the Veteran's relevant private treatment records for diabetes and neuropathy from Silver Pine Family Physicians, care of Dr. S.T. and Dr. Z.L.. Associate all records obtained with the claims file. If any identified records are unavailable or cannot be obtained, inform the appellant and his representative and give him an opportunity to submit such information. 3. After completion of the above, provide the Veteran's claims file to a qualified examiner. Another in-person examination of the Veteran is not required unless such an examination is deemed necessary by the reviewing examiner. Based on a review of the claims file, the examiner must provide a functional assessment of the Veteran's service-connected disabilities and his ability to work consistent with his education and occupational experience, and without consideration of his age or nonservice-connected disabilities. The examiner should also review the relevant evidence in the claims folder, to include any prior VA medical examinations, private medical opinions, lay statements, and SSA disability records, in the course of rendering any opinion. In rendering the requested opinion, the examiner should consider the Veteran's education, special training, and previous work experience, but should not consider his age or the effect of any nonservice-connected disabilities. The Veteran's service connected disabilities include anxiety disorder, diabetes mellitus, bilateral upper extremity diabetic peripheral neuropathy, bilateral lower extremity diabetic peripheral neuropathy, and diabetic erectile dysfunction A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. 3. After completion of the above and compliance with the requested actions has been ensured, readjudicate the issue on appeal on the basis of the additional evidence of record. If the determination remains adverse to the appellant, she and her representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review 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 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 2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).