Citation Nr: 1120764 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 06-05 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for throat cancer, to include as due to exposure to herbicides. 2. Entitlement to a disability rating higher than 10 percent for a shell fragment wound of the right ankle with a retained foreign body. 3. Entitlement to service connection for a left wrist disorder. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to October 1971, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge, Purple Heart Medal, and the Army Commendation Medal with "V" device. This appeal to the Board of Veterans' Appeals (Board) is from July 2004 and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. These claims were previously before the Board in August 2009. At that time, the Board denied entitlement to service connection for throat cancer and remanded the issues of entitlement to a disability rating higher than 10 percent for a shell fragment wound of the right ankle with a retained foreign body and entitlement to service connection for a left wrist disorder for further development. The Veteran appealed the Board's denial of entitlement to service connection for throat cancer to the United States Court of Appeals for Veterans Claims (Court), which in a May 2010 order, granted the parties' joint motion for partial remand, vacating the Board's August 2009 decision as to the claim of entitlement to service connection for throat cancer and remanded the case for compliance with the terms of the joint motion. 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. REMAND As noted above, in a Joint Motion for Partial Remand, dated in May 2010, the parties agreed that "it is not clear from the Board's decision why the appellant's medical records relating to his diagnosis and treatment for throat cancer are not of record, or whether any attempts were made to obtain these records." Joint Motion for Partial Remand at 4. The parties agreed that "the Board should provide an explanation of whether attempts were made to obtain the appellant's treatment records for his throat cancer, and if not, discuss whether appellant adequately identified the source of these records and whether he authorized VA to obtain them." Id. In addition, the parties agreed that although the Veteran was afforded a VA examination in March 2004 in connection with his claim of entitlement to service connection, the examiner did not provide an opinion regarding the etiology of the Veteran's throat cancer. The parties agreed that "[i]t is not clear from the Board's decision why this examination was performed or why a nexus opinion was not solicited at that time." Id. The parties further agreed that "the Board should reconsider whether the duty to assist has been satisfied in this case to include whether the appellant was provided an adequate examination . . . or whether one is warranted pursuant to 38 U.S.C.A. § 5103A." Id. at 6. To comply with the Court's May 2010 order granting the parties' Joint Motion for Partial Remand, the Board finds that further development is required. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). As agreed by the parties, after examination in March 2004 the examiner did not render an opinion regarding the etiology of the Veteran's throat cancer. The Board notes that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board has no discretion and must remand the claim. Review of the claims file does not reveal that the records regarding the Veteran's treatment for throat cancer have been obtained and associated. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2010). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the Veteran must be contacted and requested to identify any providers who rendered treatment for his throat cancer and, after obtaining any necessary and appropriate authorization, obtain and associate with the claims file any adequately identified records. The Board notes that the Veteran receives consistent treatment from VA, including at the VA Clinic in Madison, Alabama. Because the claims file is being returned it should be updated to include VA treatment records compiled since January 2008. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). As to the issues of entitlement to a disability rating higher than 10 percent for a shell fragment wound of the right ankle with a retained foreign body and entitlement to service connection for a left wrist, the Board notes that these claims were remanded by the Board in August 2009 for additional evidentiary development. To date, however, this development is apparently ongoing as the RO has not recertified the issues to the Board. Because the Board retains jurisdiction of these issues, the Board has listed them on the title page. In addition, the Court has held that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for an increased rating for a disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, if during the course of an increased rating appeal, the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then the issue of entitlement to TDIU is part of the increased rating claim and should be considered in connection with that rating claim. Id. In this case, the evidence reasonably raises the issue of entitlement to a TDIU as an element of the increased rating claim on appeal. At the Veteran's VA examination in September 2009, he was noted to be unemployed, not retired, and in receipt of Social Security Administration (SSA) disability for multiple problems including throat cancer. Because entitlement to a TDIU is part of the Veteran's increased rating claim, the proper remedy here is to remand the TDIU issue for all required development and adjudication. Pursuant to VA's duty to assist, VA must assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that VA must obtain a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Thus, the Board has no discretion and must remand this matter to afford the Veteran a VA examination, the report of which must address the above inquiry. See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). As noted above, the September 2009 VA examination report reflects that the Veteran was awarded disability benefits from the SSA due to multiple medical problems, including mouth/throat cancer. To date, VA has not obtained the SSA determination or the medical records on which the determination was made. Because the SSA's decision and the records upon which the agency based its determination are potentially relevant to VA's adjudication of his claims, VA is obliged to attempt to obtain and consider those records in adjudicating this appeal. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). As such, the Board has no discretion and must remand this appeal to obtain those SSA records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim of entitlement to service connection for throat cancer. The Veteran should be specifically asked to identify the records concerning his earliest diagnosis/treatment for throat cancer. After securing any necessary and appropriate authorization, attempt to obtain and associate with the claims folder any medical records identified by the Veteran. 2. Attempt to obtain VA medical records pertaining to the Veteran that are dated January 2008. 3. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 4. Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any residuals of throat cancer found to be present. The claims folder should be made available to and reviewed by the examiner. The examiner should indicate in his/her report whether or not the claims file was reviewed. All indicated studies should be performed, and all findings should be reported in detail. The examiner should comment on the VA examination report dated in March 2004 as well as any relevant records received from the SSA and opine as to whether it is at least as likely as not that any residuals of throat cancer found to be present are related to or had their onset during service or within one year of his discharge from active duty, and particularly, to his exposure to herbicides in service. The rationale for all opinions expressed should be provided in a legible report. 5. Schedule the Veteran for an appropriate VA examination regarding entitlement to a TDIU. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. All service-connected disabilities should be evaluated. Thereafter, the examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 6. Then readjudicate the Veteran's claims of service connection for throat cancer and for left wrist disability and to a higher rating than 10 percent for a shell fragment wound of the right ankle with retained foreign bodies. Then, if not rendered moot, adjudicate the Veteran's TDIU claim. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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. 2010). _________________________________________________ STEVEN D. REISS 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) (2010).