Citation Nr: 21071550
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 14-33 578
DATE: November 30, 2021

REMANDED

The claim for a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded.

REASONS FOR REMAND

In October 2017, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge.  

In February 2018, the Board remanded the claim for additional development.  In February 2019, the Board denied the claim.  

The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court).  In October 2019, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR).

In April 2020, the Board denied the claim.  In April 2021, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a JMR.  

1.  The claim for a TDIU to include on an extra-schedular basis is remanded.

The JMR shows that it was agreed that a remand was required to attempt to obtain a letter from Dr. Y[redacted] at the VA "Salem facility," who the Veteran testified had opined that he was unemployable.  The JMR notes that the Veteran has testified that he gave a copy of Dr. Y's opinion to the Social Security Administration (SSA).  The JMR shows that it was agreed that there was a violation in the duty to assist because the Board had not taken "steps to obtain this identified and materially relevant record."  Citing Golz v. Shinseki, 590 F. 3d 1317, 1322 (Fed. Cir. 2010).  The JMR further notes that the Veteran was scheduled for VA treatment shortly prior to, and after, his October 2017 hearing, but that the record contains no medical records dated after July 2017.  

Following the JMR, VA progress notes, dated between 2008 and 2021, have been received.  With regard to the alleged opinion on unemployability from "Dr. Y", VA progress notes, dated between 2012 and 2014, indicate treatment by C.Y. (with same last name as the Veteran testified for "Dr. Y"), and that she is a nurse practitioner.  Furthermore, in May 2017, the SSA's August 2015 decision on the Veteran's disability claim was obtained, together with the SSA's associated medical evidence.  That evidence included a "medical source statement of ability to do work-related activities (physical)," dated in June 2015, that was completed by C.Y., N.P.  The report contains findings on the Veteran's capacity to perform work-related tasks, but the report does not include an opinion on the Veteran's unemployability.  In summary, the alleged opinion on unemployability is not of record.  Accordingly, a remand is required.  

The matters are REMANDED for the following action:

1.  Attempt to obtain the Dr. Y's opinion on unemployability from the SSA.  If the RO cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile.  

2.  Ensure that all of the Veteran's current VA treatment reports are of record. 

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.S.E., Counsel 

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.