Citation Nr: 1815581 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-24 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1969 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the outset the Board notes that the Veteran was scheduled for an August 2012 VA examination to assess the severity of his service-connected disabilities and their functional impact on his ability to work, but he failed to report. At the January 2018 videoconference hearing, he testified that he did not receive notification of the VA examination. The Board finds that he has presented good cause for his failure to report for the August 2012 VA examination. At the Board hearing, the Veteran testified that he has been receiving Social Security Administration (SSA) disability benefits for his psychiatric disability since approximately 2012. A review of the record did not find any associated SSA records (and no indication that such records were sought). SSA records are constructively of record, and the Board is obligated to obtain them when there exists a reasonable possibility that they could help the appellant substantiate a claim for VA benefits. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Furthermore, at the Board hearing, the Veteran testified that his major depressive disorder and bilateral hearing loss have worsened since he was last examined by VA, and prevent his participation in gainful employment. Considering the Veteran's allegations of possible worsening (to the extent that the disabilities prevent him from working) and given the length of the intervening period, the Board finds that contemporaneous examinations to assess the severity of the disabilities are necessary. Finally it appears that pertinent private treatment records may be outstanding. At the Board hearing, the Veteran testified that he has received private treatment for his service connected disabilities from Tri West, Johnson City Medical Center, and Bristol Regional Medical, and that private treatment records document the impact of the service-connected disabilities on employability. Accordingly, the private treatment records must be secured. Additionally, any outstanding (updated) records of VA evaluations or treatment the Veteran may have received are constructively of record, may contain pertinent information, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record from SSA their determination on the Veteran's claim for SSA disability benefits and the complete medical records considered in connection with such determination. If such records are unavailable, it should be so noted in the record with explanation (e.g., the records have been lost or destroyed. or were not created). 2. The AOJ should secure for the record all updated records (i.e., those not already in the record) of VA evaluations or treatment the Veteran has received for his service-connected disabilities. The AOJ should also ask him to provide the identifying information and authorizations needed to secure all outstanding records of private evaluations or treatment he has received for service-connected disabilities during the evaluation period (to specifically include at Tri West, Johnson City Medical Center, and Bristol Regional Medical). The AOJ must secure for the record complete clinical records of the evaluations and treatment from all providers identified. If any records sought are unavailable, the reason must be noted in the record. If a private provider does not respond to a VA request for records the Veteran has authorized VA to secure, he must be so advised, and also advised that ultimately it is his responsibility to ensure that private records are received. 3. The AOJ should then arrange for the Veteran to be examined by a psychiatrist or psychologist to ascertain the current severity of his major depressive disorder, and its impact on his employability. The Veteran's record must be reviewed by the examiner in connection with the examination. The examiner should offer an opinion regarding the functional impact of the Veteran's service-connected major depressive disorder, in particular on his ability to engage in substantially gainful employment consistent with his education and experience. The examiner should identify the types of employment that would be precluded by the disability and the types of employment, if any, that remain feasible despite the major depressive disorder. The examiner must explain the rationale for all opinions. 4. The AOJ should also arrange for an audiological examination of the Veteran (with audiometric studies) to assess the current severity of his bilateral hearing loss disability. In addition to reporting the audiometry results, the examiner should include comment on the impact the hearing loss has on the Veteran's occupational and daily activity functioning. The examiner must explain the rationale for all opinions. 5. The AOJ should then review the record, ensure that all development sought is completed (and arrange for any further development suggested), and readjudicate the TDIU claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ George R. Senyk 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).