Citation Nr: 1126765 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 07-26 694 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent for post operative coxa vara of the right hip with osteomyelitis prior to December 9, 2009, and in excess of 30 percent on and after that date. 2. Entitlement to an initial rating in excess of 10 percent for hepatitis C. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the RO in Cleveland, Ohio, which, in relevant part, continued a 20 percent rating for the post operative coxa vara of the right hip. The issue of an increased initial rating for hepatitis C arises from a February 2010 rating decision which granted service connection. The Veteran requested a personal hearing before a Member of the Board at the RO in his July 2007 substantive appeal. The Veteran withdrew the request in a February 2011 submission. The Board may proceed. 38 C.F.R. § 20.704(d) (2010). 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 on his part. REMAND The Board must remand for additional development and reconsideration. The Veteran underwent a December 2009 VA examination in which he reported that he was receiving disability benefits from the Social Security Administration (SSA) in part due to his right hip. The United States Court of Appeals for Veterans Claims (Court) has held that, where VA has notice that the appellant is receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). Furthermore, the VCAA emphasizes the need for VA to obtain records from other government agencies. See 38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 2002). The RO should request copies of the Veteran's SSA medical records and any determination of benefits made by SSA. The Board further observes that, in his March 2010 Notice of Disagreement on the initial rating for hepatitis C, the Veteran stated that "working is out of the question," indicating that his service-connected hepatitis C renders him unemployable. The issue of entitlement to a TDIU has, therefore, been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (which stipulates that, once a veteran submits evidence of a disability and of unemployability, VA must consider total rating for compensation based upon individual unemployability). Indeed, the Court recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the matter of whether a TDIU as a result of that disability is warranted. Id. at 455. Accordingly, the issue of entitlement to a TDIU should be remanded to the RO for adjudication of the Veteran's hepatitis C initial rating claim including the issue of TDIU, in accordance with the holding in Rice. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain from the Social Security Administration (SSA) records pertinent to the appellant's claim for Social Security disability benefits, including any decisions made and medical records relied upon concerning that claim. All efforts to obtain these records should be fully documented, and SSA should provide a negative response if records are not available. 2. Issue a Veterans Claims Assistance Act of 2000 (VCAA) notice letter which satisfies the VCAA notice obligations with regard to the issue of entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 3. Copies of updated treatment records pertaining to the Veteran's service-connected disabilities should be obtained and added to the claims folder. 4. Then, the RO should readjudicate the claims on the merits. The readjudication of the hepatitis C claim must include consideration of whether TDIU is warranted on schedular or extraschedular bases. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ BARBARA B. COPELAND 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).