Citation Nr: 1009845 Decision Date: 03/15/10 Archive Date: 03/24/10 DOCKET NO. 97-26 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased evaluation for Reiter's syndrome, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to an increased evaluation for a mood disorder, encompassing anxiety and depression, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO) in March 1996 and May 2009. The claim for an increased evaluation for Reiter's syndrome was denied by the Board in a July 2008 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and, in November 2009, the Veteran and the VA General Counsel (herein "the parties") filed a Joint Motion for Remand. This motion was granted in a November 2009 Court order, and the case is again before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the November 2009 Joint Motion for Remand, the parties found that additional reasons and bases were needed in regard to the Board's conclusion that the Veteran's degenerative changes of the ankles, cervical spine, lumbosacral spine, and shoulders were not causally part of the development of his Reiter's syndrome, for which a protected 20 percent rating has been in effect under 38 C.F.R. § 3.951(b) (2009). The parties found that 38 C.F.R. § 4.13 (2009), concerning the effect of a change of diagnosis, needed to be adequately addressed and raised the possibility that a VA examination might be warranted to determine what the Veteran's current diagnosis was and how, if at all, it related to the service- connected Reiter's syndrome. The parties further noted that consideration of the applicability of the provisions of 38 C.F.R. § 4.25(b) (2009), concerning the calculation of the disability rating arising from a single disease entity; and 38 C.F.R. § 4.26 (2009), concerning the "bilateral factor" for disabilities resulting from disease or injury of both arms, legs, or paired skeletal muscles, was warranted. (The Board would note that the parties found the Board to be "correct" as to the finding that the separate diagnosis of fibromyalgia was not attributable to Reiter's syndrome.) Given the absence of an opinion in the January 2007 VA examination report as to the relationship, if any, between Reiter's syndrome and the separate diagnoses of degenerative arthritis, the Board has preliminarily determined that a further VA examination is needed to address this matter. In the Joint Motion for Remand, the parties also stressed that the Board must consider whether the Veteran has reasonably raised a claim for TDIU, noting that he testified at his May 2006 hearing that he had not held a permanent job since February 2005 and was currently self-employed picking up aluminum cans. In this regard, the Board notes that the Court has recently, in May 2009, determined that a TDIU claim, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. In view of Rice, the issue of TDIU is now part of the appeal, and the aforementioned VA examination should address whether the Veteran's service-connected disabilities (also including a mood disorder and retrocalcaneal exostosis of the right foot and left heel) render him unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16 (2009). The Veteran should also receive adequate notification of the evidence needed to substantiate a claim for TDIU. 38 C.F.R. § 3.159 (2009). Finally, in May 2009, the RO denied the Veteran's claim for an evaluation in excess of 50 percent for his service- connected mood disorder. He submitted a Notice of Disagreement with this determination in July 2009. As such, it is incumbent upon the RO to issue a Statement of the Case addressing this particular issue. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); 38 C.F.R. § 19.26 (2009). Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim of entitlement to TDIU. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The Veteran should also be notified that, in cases where service connection is granted, both a disability evaluation and an effective date for that evaluation will be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The Veteran should then be afforded a VA examination, with an appropriate examiner, to determine the symptoms and severity of the service-connected Reiter's syndrome. The Veteran's claims file should be made available to the examiner, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed, and the examiner should address the current symptoms and severity of Reiter's syndrome. In discussing the relevant clinical findings, the examiner should specifically note whether there is a causal relationship, in terms of either incurrence or a secondary increase in severity, between Reiter's syndrome and any current findings of arthritis, including that affecting the ankles, cervical spine, lumbosacral spine, and shoulders. For each diagnosis found to be etiologically related to Reiter's syndrome, the examiner should offer a description of the severity of such disability. Finally, the examiner should provide an opinion as to whether Reiter's syndrome and any secondary effects, along with the Veteran's service-connected mood disorder and retrocalcaneal exostosis of the right foot and left heel, render him unable to secure or follow a substantially gainful occupation. The examiner is reminded that the Veteran's age and nonservice- connected disabilities are not to be considered in reaching this determination. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 3. After completion of the above development, the Veteran's claims of entitlement to an increased evaluation for Reiter's syndrome and TDIU should be readjudicated. In making this determination, consideration should be given to any findings of disability secondary to Reiter's syndrome and to whether a change in diagnosis for rating purposes is warranted under 38 C.F.R. § 4.13. The provisions of 38 C.F.R. §§ 4.25(b) and 4.26 should be addressed as well. If the determination of either claim remains less than fully favorable to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. 4. The Veteran and his representative must also be furnished with a Statement of the Case addressing the issue of entitlement to an increased evaluation for a mood disorder. This issuance must include all regulations pertinent to the case at hand, as well as an explanation of the Veteran's rights and responsibilities in perfecting an appeal on this matter. The appellant 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). _________________________________________________ MARY GALLAGHER 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).