Citation Nr: 0810610 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 99-24 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The veteran served on active duty from August 1940 to August 1946 and from October 1946 to June 1960. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied a claim of entitlement to a TDIU. The veteran perfected a timely appeal of this determination to the Board. In May 2002, the veteran, accompanied by his representative, testified at a hearing conducted at the local VA office before the undersigned Veterans Law Judge on an appeal of another issue. When the matter was before the Board in August 2002, it was remanded for further development and adjudication. In remanding the matter, the Board noted that at the time of the May 2002 hearing, the claims file had been mislaid temporarily, and was therefore not available for review by either the undersigned Veterans Law Judge or the veteran's representative. As such, the undersigned Veterans Law Judge and the veteran's representative were unaware that the issue of TDIU had been developed for appellate review and the issue was therefore not discussed at the May 2002 hearing. As a consequence, on remand, the Board directed the RO to have the veteran indicate whether he wished to testify at a Board hearing on the TDIU issue; the veteran responded that he did not wish to testify at another Board hearing. When the matter was again before the Board in May 2004, the Board remanded the TDIU claim for further development and adjudication. In August 2005, the Board remanded the TDIU claim again for further evidentiary development and for the RO to complete the actions ordered by the Board in the May 2004 Remand. The requested development has been completed. The case has now been returned to the Board for further appellate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the veteran if further action is required. REMAND While further delay in the processing of this appeal is unfortunate, following a preliminary review of the record, the Board finds that additional action by the RO/AMC is necessary prior to the Board's review of the veteran's claim. As noted above, the Board remanded the veteran's TDIU claim in May 2004 and August 2005, in part, to obtain an opinion on whether it is at least as likely as not that the veteran's service connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation as well as to have his case referred to the Director of C & P for a determination as to whether the veteran is entitled to TDIU under 38 C.F.R. § 4.16(b) (2007). In an October 2005 VA examination report, based on a review of the claims file and an examination of the veteran, Dr. R.G. opined that it was at least as likely as not that the veteran's service connected disabilities both alone and in the aggregate rendered him unable to secure or follow a substantial gainful occupation. Dr. R.G. maintained that the veteran could no longer be far from a restroom because of his incontinence of stool and also because he was unable to use his left arm. In a follow-up VA examination report dated in October 2006, Dr. R.G. noted that by history, the veteran's symptoms began prior to the radiation he had for prostrate cancer and they had not worsened since the radiation. Dr. R.G. opined that it was more likely than not that the veteran's symptoms of incontinence, diarrhea, rectal pain, and intermittent bleeding were more likely due to the complications of multiple surgeries for hemorrhoids rather than from the radiation treatment. In an October 2007 memorandum, the Director of C & P noted that his service was not persuaded that the evidence in its entirety showed that the veteran was unemployed and unemployable due to his service connected left shoulder disability and hemorrhoids. In light of Dr. R.G. linking the veteran's rectal incontinence to his hemorrhoid disability and unemployability, the Board finds that the issue of whether the currently assigned evaluation for the hemorrhoid disability accurately reflects the current severity of the disability is inextricably intertwined with the TDIU issue notwithstanding that an appeal of this issue has not been developed for review. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The veteran is currently assigned a single 30 percent rating for his hemorrhoid disability under Diagnostic Codes "7336-7333." The veteran's disability, however, is manifested by a history of multiple surgeries for his hemorrhoids (even as recently as in 2003, according to the October 2006 VA examination report) and rectal incontinence. Under Diagnostic Code 7336, evaluations are based primarily on the severity of the hemorrhoids. See 38 C.F.R. § 4.114, Code 7336 (2007). Under Diagnostic Code 7333, evaluations are based on the severity of reduction of the lumen and leakage of feces. See 38 C.F.R. § 4.114, Code 7333 (2007). Under Diagnostic Code 7332, evaluations are based on the severity and frequency of leakage of feces. See 38 C.F.R. § 4.114, Diagnostic Code 7332 (2007). Section 4.114 does not prohibit combination of ratings under Diagnostic Codes 7332, 7333, and 7336, and as symptoms listed under Diagnostic Codes 7332, 7333 and 7336 are distinct, assigning separate ratings under these codes would not violate the prohibition against pyramiding in 38 C.F.R. § 4.14 (2007). Thus, it is necessary to resolve the issue of whether the veteran's overall hemorrhoid disability, including rectal incontinence, warrants an increased rating and/or separate ratings under Diagnostic Codes 7332, 7333, and 7336. Any records of treatment the veteran has received for his hemorrhoid disability and rectal incontinence throughout the years should be associated with the claims file. Finally, to ensure the record is complete on the TDIU issue, records of treatment the veteran has received for his service connected left shoulder disability since his last VA examination (through QTC Medical Services) in March 2003 should also be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all health care providers that have treated him for his hemorrhoids and rectal incontinence throughout the years and his left shoulder disability since March 2003. With any necessary authorization from the veteran, the RO/AMC should attempt to obtain and associate with the claims files any medical records identified by the veteran that have not been secured previously. 2. The RO/AMC should re-evaluate the extent of the severity of the veteran's hemorrhoids and rectal incontinence in light of the more recent medical records, including the October 2005 and October 2006 VA examination reports. The RO/AMC should consider the propriety of assigning separate ratings under any of Diagnostic Codes 7332, 7333, and 7336. Should the veteran submit a timely notice of disagreement in response to the rating determination on the hemorrhoid and rectal incontinence issue, then a statement of the case must be issued to allow the veteran to perfect an appeal to the Board if he so desires. 3. The RO/AMC should readjudicate the TDIU claim. If the benefit sought on appeal remains denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran 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 Supp. 2007). _________________________________________________ N. R. ROBIN 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) (2007).