Citation Nr: 1011346 Decision Date: 03/25/10 Archive Date: 04/07/10 DOCKET NO. 06-34 306 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for recurrent perianal abscesses with extensive scarring and hidradenitis suppurativa. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD T.R. Bodger, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). In a November 2009 Order, the Court endorsed a joint motion for remand, which vacated the June 2009 Board decision that denied the Veteran's claim for an increased rating for his recurrent perianal abscesses, and remanded this matter for compliance with the instructions in the joint motion. This matter initially came before the Board on appeal from an August 2005 rating decision, which continued the Veteran's current 30 percent disability rating for his perianal abscesses. It should be noted that in January 2009 the RO granted the Veteran's service connection claim for hidradenitis suppurativa of the groin area and evaluated this disorder at 0 percent disabling. In granting this disability, the RO, relying on a November 2003 VA examination report, noted that hidradenitis suppurativa and perianal abscesses are two distinct disabilities. However, the RO also acknowledged that other medical evidence showed these two disorders were related to each other, including the November 2008 VA examination report which concluded that the perianal abscesses are manifestations of the hidradenitis suppurativa. In rating the Veteran's service-connected hidradenitis suppurativa, the RO included this disorder with the Veteran's service-connected recurrent perianal abscesses explaining that these two disabilities are so closely related that it was not possible to distinguish the conditions. Giving the Veteran the benefit of the doubt, the Board agrees with the RO's determination. Accordingly, the issues have been restyled. The Veteran testified before the undersigned Veterans Law Judge at an April 2009 video conference hearing. He also testified during hearings before the RO in May 2000 and August 2006. Transcripts of these proceedings have been associated with the claims file. The Board notes that at the time of its June 2009 decision, it was unclear whether the Veteran was seeking a claim for TDIU. However, it is now clear that the Veteran is seeking a TDIU claim. The Court recently held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 453-54 (2009). When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Id. The Veteran has asserted in this case that he is entitled to a TDIU because he is not employable solely by reason of his service- connected disabilities. The issue is now properly before the Board. The Veteran submitted additional evidence consisting of a vocational assessment dated in January 2010 regarding the Veterans employability. The new evidence was accompanied by a waiver of the Veteran's right to initial consideration of the new evidence by the RO. 38 C.F.R. § 19.9, 20.1304 (c)(2009). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the TDIU issue on appeal. The issues of service connection for bilateral neuropathy of the Veteran's upper and lower extremities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Further, the Veteran also requested a clothing allowance in his August 2008 Notice of Disagreement. This matter also has not been adjudicated by the AOJ and is referred for appropriate action. For reasons stated below, the Board finds that additional development is necessary. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board must remand this case for further development. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of the medical opinion is derived from a factually accurate, fully articulated and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was afforded a November 2008 VA examination to determine the severity of his perianal abscesses and his hidradenitis suppurativa. However, this examination is inadequate to allow the Board to determine the current severity of the Veteran's disability based upon all potentially relevant diagnostic codes. The record contains evidence that the Veteran was prescribed flunisolide, which is considered a corticosteroid. However, the examiner did not discuss this prescription or determine whether and to what extent the Veteran was prescribed systemic therapy, such as this corticosteroid or other immunosuppressive drugs, to control the symptoms associated with his perianal abscesses. Further, the report provides that the examiner observed numerous scars. However, the scars were not described in detail. Specifically, the amount and type of scars were not discussed. Based upon the foregoing, the Board finds that an additional examination is necessary. With respect to the Veteran's TDIU claim, as noted in the Introduction, he alleges that his service-connected skin disabilities preclude him from obtaining gainful employment. The Board finds that the claim for an increased rating for perianal abscesses and his TDIU claim are inextricably intertwined. Thus, a Board decision as to TDIU at this time would be premature. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Further, the Veteran is currently service-connected for recurrent perianal abscesses with excessive scarring, hidradenitis suppurativa, posttraumatic stress disorder, diabetes mellitus type II, tinnitus, and hearing loss of the ear. He meets the scheduler criteria for a TDIU; however, it must be determined whether such service-connected disabilities alone make him unemployable. The Veteran's most recent VA examination, dated in November 2008, did not contain a medical opinion concerning the impact of the Veteran's service-connected disabilities on his employability. The record also contains conflicting medical opinions regarding his employability, including an August 2007 medical opinion indicating the Veteran is employable despite his hidradenitis suppurativa and a January 2010 opinion contradicting this conclusion. An examination is necessary to provide an opinion on what effect his service- connected disabilities have on the Veteran's ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his service-connected recurrent perianal abscesses and hidradenitis suppurativa. Specifically, the examiner is asked to examine and comment on (i) the Veteran's past and present use of medication used to treat the above-referenced disorders, including the duration of each usage; (ii) the number of scars observed; and (iii) whether these scars have underlying soft tissue damage and/or are painful. This examiner should also determine whether the Veteran's service-connected perianal abscesses and hidradenitis suppurativa prevent him from engaging in a substantially gainful occupation. The entire claims file must be made available to and reviewed by the examiner prior to the examination. The examiner should indicate in the report that the entire file was reviewed. All appropriate medical diagnostic tests should be accomplished, and all clinical findings should be reported in detail, in terms conforming to the applicable rating criteria. 2. Schedule the Veteran for a VA examination to determine whether the Veteran's service-connected disabilities, to include perianal abscesses, hidradenitis suppurativa, hearing loss, tinnitus, posttraumatic stress disorder, and diabetes mellitus type II, alone prevent him from engaging in a substantially gainful occupation, i.e. whether it is at least as likely as not that the Veteran is rendered unemployable solely due to his service- connected disabilities (e.g., without regard to age or nonservice-connected disorders). 3. Then, readjudicate the Veteran's increased rating and TDIU claims. The RO should consider all applicable DCs to include the DCs pertaining to scarring. In the event that any claim is not resolved to the satisfaction of the Veteran, he should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran 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.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).