Citation Nr: 0812478 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-18 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 40 percent for left leg injury with chronic venous insufficiency, left lower extremity. 2. Entitlement to a rating in excess of 40 percent for chronic venous insufficiency, right lower extremity. 3. Entitlement to a rating in excess of 30 percent for recurrent urinary tract infection, secondary to urethral stenosis. 4. Entitlement to an effective date earlier than November 18, 2002, for the award of a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from April 1962 to April 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a rating decision dated in March 2003, the RO awarded increased ratings, from 30 percent to 40 percent for the veteran's service-connected left leg injury with chronic venous insufficiency, left lower extremity, and her service- connected chronic venous insufficiency, right lower extremity. In addition, the RO denied a rating in excess of 30 percent for the veteran's service-connected recurrent urinary tract infection, secondary to urethral stenosis. In the same rating decision, the RO denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The veteran filed a notice of disagreement with the RO decision and testified before a Decision Review Officer at a hearing held at the RO in September 2003. Thereafter, the veteran perfected her appeal. In a rating decision dated in May 2005, the RO granted a TDIU effective November 18, 2002. The veteran disagreed with the effective date and perfected her appeal as to that issue. At a Board hearing held at the RO in August 2007, the veteran testified concerning the increased rating claims as well as the effective date for the award of TDIU. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. Other matters In correspondence to the Board, the veteran has stated that her back, neck, left foot, and first finger on her right hand were hurt in service; she states she has never gotten well has been suffering for a long time. She has also stated that she has lupus that started in service. In addition, she has stated that she has never recovered since her heart stopped during an IVP dye test while she was in service; she asserts that she had a transient ischemic attack, her heart stopped, and her body started shutting down. She states she has been sick and will never get any better. It is unclear from her statements whether the veteran is attempting to reopen previously service connection claims, and the Board refers these matters to the RO for clarification and action, if appropriate. Records submitted by the veteran indicate that sometime during 2007 her request for a motorized scooter had been denied by a VA Medical Center but was later granted. The veteran now states she needs a van to carry the scooter, and documents she submitted to the Board include a VA Form 21- 4502, Application for Automobile or Other Conveyance and Adaptive Equipment, dated in November 2007. There is no indication whether that matter has been adjudicated, and it is not currently before the Board. REMAND The veteran is seeking increased ratings for each of her service-connected disabilities and an effective date earlier than November 18, 2002, for her TDIU. The veteran's service- connected disabilities are: left leg injury with chronic venous insufficiency, left lower extremity; chronic venous insufficiency, right lower extremity; and recurrent urinary tract infection, secondary to urethral stenosis. Historically, the Board addressed increased rating claims and a TDIU in a decision dated in August 1987. That appeal arose out of the veteran's disagreement with decisions of the RO that denied increased ratings the left and right lower extremities, each rated 30 percent disabling, reduced from 30 percent to 0 percent the rating for recurrent urinary tract infection, and denied TDIU. In its August 1987 decision, the Board denied increased ratings for each of the lower extremities, denied an increased (compensable) rating for recurrent urinary tract infection, and denied TDIU. The December 1987 Board decision is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In December 1987, the veteran filed a claim requesting restoration of the previously assigned 30 percent rating for recurrent urinary tract infection and also stated that she was unemployable. In a rating decision dated in January 1988, the RO continued the noncompensable rating for the service-connected recurrent urinary tract infection. In a letter dated in January 1988, the RO informed the veteran of that decision and provided notice of her appellate rights. In the January 1988 letter, the RO advised the veteran that if she wished to apply for individual unemployability, she should complete and submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The veteran completed and returned the form in late January 1988 and at the same time claimed service connection for a psychiatric disability secondary to her service-connected disabilities and submitted the report of a December 1987 psychiatric evaluation. In February 1988, the RO issued a statement of the case (SOC) on the issue of entitlement to an increased (compensable) rating for recurrent urinary tract infection. In the SOC the RO indicated that it had accepted statement received from the veteran in December 1987 as her notice of disagreement with the January 1988 rating decision. Then, in a rating decision dated in March 1988, the RO determined that new and material evidence had not been received to reopen a previously denied claim for service connection for psychiatric disability and denied entitlement to TDIU. In a letter to the veteran dated in March 1988, the RO stated it had determined that the evidence she submitted to reopen her previously disallowed claim is not new and material because it does not provide a new basis for consideration of her claim. The letter included notice of the veteran's procedural and appellate rights. The veteran did not file a notice of disagreement in which she identified the March 1988 rating decision or March 1988 letter. In a rating decision dated in August 1988, the RO continued the denial of an increased rating for recurrent urinary tract infection and issued a supplemental statement of the case on that issue in August 1988. On a VA Form 1-9, Appeals to Board of Veterans Appeals, received the day after the RO issued the SSOC, the veteran stated she wished to continue her appeal to the Board concerning the rating for her service-connected urinary tract infection. On a VA Form 1-9, which was received at the RO on September 29, 1988, the veteran stated "I have kidney problems that keep me from working I need my unemployability 100% disability." In a decision dated in September 1989, the Board denied an increased (compensable) rating for recurrent urinary tract infection, secondary to urethrostenosis, and that decision is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.100. In the Introduction, the Board referred to the RO various issues, including entitlement to TDIU stating the issued had not been procedurally developed for appellate consideration. Thereafter, in a rating decision dated in January 1990, the RO confirmed and continued a noncompensable rating for the veteran's service-connected recurrent urinary tract infection. In a January 1990 letter, the RO notified the veteran of that decision and informed her of her appellate rights. The veteran did not file a notice of disagreement with that decision, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. In a memorandum dated in April 2001, the veteran's representative stated that the RO had failed to address issues raised by the veteran, including entitlement to TDIU raised on her VA Form 1-9 received in September 1988. In memorandum dated in October 2002, the veteran's representative stated it wanted to bring to the RO's attention the April 2001 memorandum, which included reference to the veteran's September 1988 request that the RO address the issue of entitlement to TDIU. Neither of the memoranda bears a stamp indicating the date of its receipt by the RO. Thereafter, in a letter dated in November 2002, the RO advised the veteran that if she believes she qualifies for TDIU, she should complete and return the enclosed VA Form 21- 8940. The RO received the veteran's completed form on November 18, 2002. In its March 2003 rating decision, the RO awarded increased ratings, from 30 percent to 40 percent for the veteran's service-connected left leg injury with chronic venous insufficiency, left lower extremity, and her service- connected chronic venous insufficiency, right lower extremity. In addition, the RO denied a rating in excess of 30 percent for the veteran's service-connected recurrent urinary tract infection, secondary to urethral stenosis; the Board notes that the RO incorrectly stated that the 30 percent rating had been in effect for 20 years and as such was a protected rating. In the same rating decision, the RO denied entitlement TDIU. The veteran filed a notice of disagreement with the RO decision and thereafter perfected her appeal. Then, in a rating decision dated in May 2005, the RO granted a TDIU effective November 18, 2002. The veteran disagreed with the TDIU effective date and perfected her appeal as to that issue. The Board has before it the matter of entitlement to increased ratings for each of the veteran's service-connected disabilities as well as entitlement to an effective date earlier than November 18, 2002, for the TDIU effective date. The veteran contends that the effective date of the award of TDIU should be March 16, 1973, because she entered a VA hospital on that date and has not worked since then. Alternatively, she states that VA has said she was unemployable since February 18, 1974, and she asserts she should have been rated at the 100 percent rate since that date. The veteran's representative contends that entitlement to TDIU should be granted effective December 14, 1987, and he argues that the veteran has had a TDIU claim pending from that date and that she has been totally disabled since then based on statements from her treating physician. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute and regulation provide, in impertinent part, that the effective date of an award of increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The United States Court of Appeals for Veterans Claims (Court) has recognized that TDIU may be sought as a type of increased-rating claim. See Ingram v. Nicholson 21 Vet. App. 232, 248 (2007) citing Norris v. West, 12 Vet. App. 413, 420-21 (1999) (finding that TDIU "is in essence a claim for an increased rating" and applying the informal claim provisions of 38 C.F.R. § 3.157 to TDIU claims); see also Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007) (holding that a TDIU claim based on a condition that has already been service connected is an increased-rating claim for the purpose of application of 38 U.S.C. § 5110(b)(2)). As outlined above, the August 1987 Board decision denied entitlement to TDIU and increased ratings for the veteran's service-connected disabilities, and that decision was final and is binding, including as to degree of disability. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.100. The veteran has not claimed there was clear and unmistakable error in that or any prior Board decision, thus foreclosing the veteran's contention that the TDIU effective date should be in March 1973 or February 1974. As to the argument that the veteran has had a TDIU claim pending since December 14, 1987, the RO denied that claim in its March 1988 rating decision. Although the RO did not provide explicit notice of its TDIU denial, it did, in its March 1988 letter notify the veteran of its denial of the claim for service connection for psychiatric disability filed at the same time in January 1988 when the veteran filed her VA Form 21-8940 for TDIU. It is, therefore, arguably reasonable to expect the veteran to know that her TDIU claim was denied and that she could appeal as outlined in the March 1988 notice letter. See Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed Cir. 2006), reh'g and reh'g en banc denied (where veteran files more that one claim at the same time and RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run). Although the veteran did not file a notice of disagreement with the March 1988 decision, on the VA Form 1-9, which was received at the RO on September 29, 1988, she again raised the issue of entitlement to TDIU. That TDIU claim remained pending until granted by the RO in its May 2005 rating decision. See 38 C.F.R. § 3.160; see also Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007) (a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in a RO decision from which the claimant could deduce the claim was adjudicated or an explicit adjudication of a subsequent "claim" for the same disability). An informal TDIU claim date of September 29, 1988 having been established, it must be determined when TDIU entitlement arose, including whether it is factually ascertainable that the criteria for a TDIU were met within in a year prior to the date of the informal claim. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1) and (2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). A TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may be granted on an extraschedular basis when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). Additional evidence is needed to adjudicate the TDIU claim, and this includes action to obtain available medical records concerning evaluation and treatment of her service-connected disabilities dating back to 1987. In this regard, the claims files include various letters over an extended period and some treatment records (dated from March 1996 to August 1999) from VA fee-basis physicians, P.C., M.D., and P.C., II, M.D., who have treated the veteran for her service-connected disabilities. Dr. P.C. has stated that he has treated the veteran since 1976, and action should be taken to obtain relevant treatment records from him and his son. Although the record includes VA outpatient records dated from October 2001 to September 2003, it is not clear whether the veteran received VA treatment for her service-connected disabilities from September 1987 to October 2001 or after September 2003. Any additional VA medical records and any other private medical records reflecting treatment of the veteran's service-connected disabilities may be pertinent to the increased rating claims as well as the TDIU effective date claim, and action should be taken to obtain and associate them with the claims file. Although the RO requested and obtained records from the Social Security Administration (SSA) in 2004, the veteran has indicated she continues to receive SSA disability benefits. Action should be taken to obtain any subsequent records available from SSA as they also may be pertinent to the increased rating claims, which remain on appeal. Relative to duties to notify and assist the veteran, the Court has recently noted that for an increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. One of the increased rating claims in this case, as in Vazquez-Flores, involves application of the VA Rating Schedule for Disabilities as it applies to the genitourinary system. Here the veteran's service-connected recurrent urinary tract infection, secondary to urethral stenosis, has been rated under the Diagnostic Code for stricture of urethra, which is to be rated as voiding dysfunction under 38 C.F.R. § 4.115a, which in turn directs that voiding dysfunction be rated as urine leakage, frequency, or obstructed voiding for the particular condition. In turn, there are different specific criteria for rating each of those types of voiding dysfunction. The veteran should be notified of the specific criteria necessary to be awarded the higher ratings. Similar notice should be provided the veteran regarding the requirements for increased ratings for her service-connected left leg injury with chronic venous insufficiency of the left lower extremity and her service-connected chronic venous insufficiency of the right lower extremity. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. at 43-44. Relative to specific development, the Board notes the veteran last underwent a VA examination in August 2006, and it is the judgment of the Board that a current VA examination would facilitate its decision on the increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, if additional evidence outlined above is obtained, a retrospective medical opinion may be required as to whether, and if so as of when, it can be concluded that it is at least as likely as not that the veteran's service-connected disabilities alone kept her from obtaining and maintaining substantially gainful employment. See Chotta v. Peake, No. 05-3204 (U.S. Vet. App. Mar. 11, 2008) (duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Accordingly, the case is REMANDED for the following action: 1. Please send the veteran and her representative a letter explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the veteran's claims. The letter must provide notice about the information and evidence necessary to substantiate each of her claims, provide notice of the type of evidence VA will obtain and the type of evidence the veteran is expected to provide. Make an explicit request that the veteran submit any evidence in her possession that pertains to any of her claims and has not been submitted previously. As to the increased rating claims, the letter must comply with the holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) and specify the criteria for an increased rating for each of the veteran's service-connected disabilities, including alternative criteria that may be used to rate her service-connected recurrent urinary tract infection, secondary to urethral stenosis. Request that the veteran provide the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, from which she received evaluation or treatment for any of her service-connected disabilities from September 1987 to the present. With appropriate release authorizations, take action to obtain and associate with the claims file records identified by the veteran that have not been secured previously. There should be a specific request that the veteran provide release authorizations for records from P.C, M.D., and P.C., II, M.D., Selma Doctors Clinic, from September 1987 to the present. Take action to secure copies of those records. 2. Identify all VA health care facilities at which the veteran has received treatment or evaluation and obtain and associate with the claims file VA medical records for the veteran dated from September 1987 to October 2001 and from September 2003 to the present. 3. Contact the Social Security Administration (SSA) and request any records for the veteran that have been added to her SSA file since March 2004 when that organization last furnished records to VA. 4. Then, arrange for VA examination of the veteran to determine the nature and severity of her service-connected left leg injury with chronic venous insufficiency, chronic venous insufficiency of the right lower extremity, and recurrent urinary tract infection, secondary to urethral stenosis. All indicated studies should be performed. With respect to chronic venous insufficiency, the examiner should determine for each lower extremity whether there is what may be characterized as massive board-like edema with constant pain at rest. If such is not present, the examiner should determine, again for each lower extremity, whether there is persistent edema or subcutaneous induration and stasis pigmentation or eczema, and, if so whether there is ulceration. If there is ulceration, the examiner should determine the frequency with which it occurs, that is, whether it is intermittent or persistent. For each lower extremity, the examiner should describe the impact of the service- connected disability on the veteran's employment and daily life. With respect to the veteran's service- connected urinary tract infection, secondary to urethral stenosis, the examiner should determine the nature and severity of the disability including whether it requires the use of an appliance or wearing of absorbent materials. If the wearing of absorbent materials is required, determine the frequency with which the materials must be changed. If the disability results in urinary frequency, determine daytime voiding interval and the number of times per night it causes the veteran to awaken to void. The examiner should describe the impact of the service- connected recurrent urinary tract infection on the veteran's employment and daily life. The examiner should be requested to review the veteran's claims file, including private and VA medical records dated from September 1987 to November 2002, and provide a retrospective opinion as to whether, and if so at what time during that period, it was at least as likely as not (50 percent probability or higher) that without consideration of non- service-connected disabilities the veteran's service-connected disabilities prevented her from obtaining or maintaining substantially gainful employment. The claims file must be provided to the examiner. 5. Then, after completion of any additional development indicated by the state of the record, determine the appropriate rating for the veteran's service-connected recurrent urinary tract infection, secondary to urethral stenosis, from January 1990 to the present and for the veteran's service- connected left leg injury with chronic venous insufficiency of the left lower extremity and her service-connected chronic venous insufficiency of the right lower extremity from September 1987 to the present. This should include consideration of Hart v. Mansfield, 21 Vet. App. 505 (2007) pertaining to staged ratings for service-connected disabilities. In so doing, readjudicate the current increased rating claims for each of those disabilities, as they are in appellate status. In addition, readjudicate entitlement to an effective date earlier than November 18, 2002, for the award of TDIU, to include consideration of whether the criteria for TDIU were met at any time from September 1987 (a year prior to the date of the TDIU informal claim) and November 18, 2002. This will require consideration of 38 C.F.R. § 4.16(a) and (b) and 38 C.F.R. § 3.321(b). If any benefit sought on appeal is not granted to the veteran's satisfaction, issue an appropriate supplemental statement of the case and provide the veteran and her representative an opportunity to respond. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ JAMES L. MARCH 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).