Citation Nr: 1012168 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 06-36 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected left shoulder disability. 2. Entitlement to benefits under 38 U.S.C.A. § 1151 for additional disability of the left arm, hand, and fingers as a result of EMG testing at a VA facility. 3. Entitlement to a rating in excess of 10 percent for service-connected thoraco-scapular tendonitis of the left shoulder prior to March 28, 2008, to include entitlement to total disability rating due to individual unemployability (TDIU rating). 4. Entitlement to a rating in excess of 20 percent for service-connected thoraco-scapular tendonitis of the left shoulder from March 28, 2008 onward, to include entitlement to a TDIU rating. 5. Entitlement to an effective date prior to May 9, 2001 for the grant of a 10 percent rating evaluation for service- connected thoraco-scapular tendonitis of the left shoulder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In December 2009, the Veteran testified at a personal hearing before the undersigned, sitting at the RO. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran also filed a timely notice of disagreement with the denial of a claim to reopen a claim for service connection for a skin disorder, secondary to herbicide exposure. However, he subsequently withdrew that claim; therefore, the Board does not have jurisdiction over that issue at this time. 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 The record reflects that the Veteran filed for disability benefits from the Social Security Administration (SSA) while his appeal was pending; however, records related to his application are not associated with the claims file. Although SSA has reported that the benefits were denied, the documents associated with that claim for benefits are still potentially relevant to the Veteran's service connection, 38 U.S.C.A. § 1151, and increased rating claims. When VA has notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002); Baker v. West, 11 Vet. App. 163, 169 (1998). Accordingly, a remand is necessary so these outstanding records may be obtained. Additionally, the Board observes that the Veteran has not been afforded a VA examination with regard to his claim for benefits pursuant to 38 U.S.C.A. § 1151. The Veteran is competent to speak to symptoms that are readily observable. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Veteran is competent to state that he has had increased pain and loss of function in the left arm since the November 16, 2002 EMG. Therefore, the Board finds that the record provides sufficient evidence of an additional disability due to the EMG to warrant scheduling a VA examination with respect to that claim. Additionally, the Board notes that the Court has recently held that a TDIU claim is part and parcel of an increased- rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not filed a claim for TDIU; however, the record includes evidence that the Veteran's service-connected left shoulder disability may have impaired his ability to work. Therefore, in light of the Court's decision in Rice, the VA must adjudicate that issue as part of the claim for an increased rating for the service-connected disability. Id. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the claims for increased ratings for the Veteran's service-connected left shoulder disability must also be remanded for consideration of the propriety of a TDIU rating by the AOJ. Accordingly, the case is REMANDED for the following actions: 1. Request all documents relevant to the Veteran's application and denial of disability benefits from the SSA. All requests and responses, positive and negative, should be associated with the claims file. 2. Schedule the Veteran for a VA neurological examination in order to ascertain the existence and etiology his claimed additional disability of the left arm, hand, and fingers. The claims file should be made available for review, and the examination report should reflect that such review occurred. All necessary testing should be performed and the results documented. Upon completion of the examination, the examiner should respond to the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran developed an additional disability of the left arm, hand, and fingers as a direct result of the EMG performed at a VA facility in November 2002? b) If the answer to a) is positive, the examiner should: i. Discuss whether, in performing the November 14, 2002 EMG, it is at least as likely as not (50 percent probability or greater) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished such care without the Veteran's informed consent. ii. Discuss whether it is at least as likely as not (50 percent probability or greater) that any additional disability of the left arm, hand, and fingers was an event or outcome not reasonably foreseeable. A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 3. Schedule the veteran for a VA examination to determine the impact that his service-connected left shoulder disability has on his employability. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file must be made available for review and the examiner's report should reflect that such review occurred. The examiner must then elicit from the veteran and record, for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide an opinion as to whether the veteran is unable to obtain or maintain substantially gainful employment due only to his service- connected disability(s), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated, to include all evidence received since the October 2009 statement of the case. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. The adjudication of the claims for increased ratings for the service- connected left shoulder disability should include any development deemed necessary with regard to the propriety of a TDIU and a determination as to that question. An appropriate period of time should be allowed for response. 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 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals