Citation Nr: 1634006 Decision Date: 08/29/16 Archive Date: 08/31/16 DOCKET NO. 07-18 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from April 1983 to March 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board remanded this matter in May 2013. In that remand, the Board explained that the claim for entitlement to a TDIU was reasonably raised by the record as part of the Veteran's appeal for an increased rating for his service-connected peripheral neuropathy of the right lower extremity under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the matter so that the Agency of Original Jurisdiction (AOJ) could request that the Veteran complete an application for a TDIU, provide the Veteran with a VA examination as to the TDIU issue, and adjudicate the issue. The Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in December 2008 as to the appeal for an increased rating for his service-connected peripheral neuropathy of the right lower extremity. At the hearing, the Veteran presented testimony relevant to the issue of entitlement to a TDIU. A transcript of the hearing is associated with the record. In February 2010, the Board informed the Veteran that the VLJ who held the December 2008 Board hearing had retired from the Board. The Board provided the Veteran an opportunity to have another hearing before a different VLJ. Later in February 2010, the Veteran indicated that he wished to have such a hearing. The Board remanded the case in July 2010 so that another hearing could be scheduled. The Veteran was scheduled for a hearing before a VLJ in November 2011; however, he did not appear for the scheduled hearing, has not provided a statement of good cause for not appearing, and has not since requested another Board hearing. Therefore, the hearing request is considered withdrawn, and the Board will proceed appellate consideration. See 38 C.F.R. § 20.702(d) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that this matter must be remanded so that the below described three items of development may be completed before a decision may be made on the merits. First, the record reflects that the Veteran underwent VA examinations at the Albany VA Medical Center on July 1, 2013. See "Evidence" section of April 1, 2016 rating decision. However, the reports for those examinations have not been associated with the record. Therefore, a remand is required so that those reports may be associated with the record. Second, the record reflects that the RO requested Social Security Administration (SSA) disability records in November 2006, and that the SSA replied to the request in December 2006, indicating that, "The individual listed on your request (to date) is not entitled to disability or SSI benefits. We presently have no medical on file." However, the Veteran later submitted a March 2007 SSA Administrative Law Judge (ALJ) decision finding the Veteran to be disabled for SSA purposes from April 11, 2004. The SSA ALJ decision reflects consideration of several medical records, to include a consultative examination report dated in August 2005. As such, although the SSA provided a negative reply in December 2006, evidence dated thereafter reflects that there are likely outstanding SSA disability records relevant to the matter on appeal. On remand, the SSA records must be requested and associated with the record. See 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Third, the record includes VA treatment records from the Albany VA Medical Center dating from March 2000 through May 9, 2007, and from September 17, 2014, through October 26, 2015. The VA treatment records dating from September 17, 2014, through October 26, 2015, refer to treatment provided prior to September 17, 2014, that may be relevant to the matter on appeal. Accordingly, the evidence reflects that that there may be outstanding, relevant VA treatment records. VA treatment records, even if not associated with the record, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the AOJ must also obtain VA treatment records from the Albany VA Medical Center dating from May 10, 2007, through September 16, 2014, and from October 27, 2015, through the present, and associate those records with the record. Accordingly, the case is REMANDED for the following action: 1. Associate copies of the July 1, 2013 VA examinations with the record. 2. Request from the Social Security Administration any records associated with the Veteran's claim for disability benefits, to include a full copy of the March 2007 Administrative Law Judge decision and the medical records on which that decision was based. If there is a negative response, such should be documented in the record and the Veteran notified accordingly. 3. Obtain all outstanding VA treatment records relevant to the matter being remanded, to include from the Albany VA Medical Center for dates May 10, 2007, through September 16, 2014, and from October 27, 2015, through the present, and associate the records with the record. 4. After completion of the above, review the expanded record, including any evidence entered since the most recent supplemental statement of the case. Consideration should be given as to whether the matter of entitlement to a TDIU on an extra-schedular basis should be referred to the Director of the Compensation Service pursuant to 38 C.F.R. § 4.16(b). If any benefit sought remains denied, furnish the Veteran with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned 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 2014). _________________________________________________ MICHAEL MARTIN 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).