Citation Nr: 1800799	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  09-03 111	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to May 18, 2011.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Behlen, Associate Counsel





INTRODUCTION

The appellant served on active duty in the Army from April 1969 to November 1970, including service in the Republic of Vietnam.  He is the recipient of the Air Medal, the Army Commendation Medal, and the Good Conduct Medal.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  The Board most recently remanded this matter in January 2017.  A Supplemental Statement of the Case (SSOC) was issued in August 2017.

An April 2013 Report of General Information states that the appellant no longer desired a Board hearing.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

As directed by the Board's January 2017 remand, this matter was referred to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis.  After such consideration, the Director denied TDIU on an extraschedular basis prior to May 18, 2011.  In reaching the decision, the Director observed that VA's shared system showed that the appellant had been in receipt of Social Security Administration (SSA) disability benefits beginning October 22, 2007.  The Director stated that there was nothing of record which indicated which disability or disabilities SSA determined to be the cause of the appellant's inability to work under SSA criteria.

It does not appear that these records have been requested, received, or that SSA has indicated that the records do not exist or that further efforts to obtain them would be futile.  

Thus, a remand is warranted to enable the RO to undertake appropriate efforts to obtain these potentially relevant records.  See McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (noting that Congress has explicitly defined VA's duty to assist in terms of relevance); see also Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010) (noting that "[r]elevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim.").

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate efforts to obtain copies of SSA records pertaining to the appellant's award of disability benefits, to include copies of any decisions rendered and the records upon which such decisions were based.  

2.  After the development requested above is completed, the AOJ should readjudicate the claim, considering all the evidence of record.  If the determination remains adverse to the appellant, he and his representative should be furnished with a Supplemental Statement of the Case and an appropriate period of time to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012).




______________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).