Citation Nr: 1216713 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 06-27 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to restoration of the previous 100 percent rating for service-connected bronchial asthma. 2. Entitlement to a rating in excess of 60 percent for service-connected bronchial asthma. 3. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to August 1984. 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 Detroit, Michigan. Specifically, in November 2005, the RO reduced the Veteran's 100 percent rating for service-connected bronchial asthma to 30 percent, effective as of February 1, 2006. In March 2006, the RO denied the Veteran's claim for a rating in excess of 30 percent for such disability. In September 2006, the RO increased the rating for bronchial asthma to 60 percent, effective as of February 1, 2006. However, as this was not a full grant of the benefit sought on appeal, and the Veteran has not expressed satisfaction with this determination, his appeal proceeds from the initial unfavorable rating decision. AB v. Brown, 6 Vet. App. 35, 39 (1993). In August 2007, the RO denied the Veteran's claim for entitlement to TDIU. All three issues are pending on appeal, as discussed below. In July 2006, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO as to the rating for his bronchial asthma. In May 2010, he testified before the undersigned Veterans Law Judge (VLJ) as to the issue of entitlement to a TDIU at a hearing at the RO. He also testified as to the severity of his service-connected bronchial asthma at that time, as this is his only service-connected disability and is the basis for his TDIU claim. A transcript of each of these hearings has been associated with the claims file. The Board notes that the RO referred to a May 18, 2006 local hearing transcript in two supplemental statements of the case (SSOCs) issued in October 2011, and the Veteran's attorney requested a copy of any such hearing transcript. However, this appears to be a typographical error by the RO, as the only two hearings in this case were conducted at the RO on July 11, 2006, and May 28, 2010. See also February 2012 letter from Board to attorney (informing him that there is no May 18, 2006 hearing transcript for this case, in response to his request for such transcript or clarification of the local hearing date). This case was previously before the Board two times. In December 2009, the Board denied a rating in excess of 60 percent for the service-connected bronchial asthma. The Veteran appealed from that decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2010, pursuant to a Joint Motion for Remand, the Court issued an Order vacating the Board's decision and remanding the case for compliance with the directives specified in the Joint Motion for Remand. In May 2011, in compliance with the Court's Order, the Board addressed whether new and material evidence was received within the one-year period following the rating decision which reduced the Veteran's rating from 100 to 30 percent (now 60 percent), pursuant to 38 C.F.R. 3.156(b) (2011). The Board found that new and material evidence had been received during such period and, therefore, the RO (as the agency of original jurisdiction) must adjudicate the issue of the propriety of the reduction in rating for bronchial asthma from 100 percent. The case was remanded for this purpose, and the RO was also directed to inform the Veteran that a notice of disagreement and substantive appeal had not been received as to this issue, and that it would be returned to the Board only if an appeal was fully perfected. In addition, the Board found that the issues of a rating in excess of 60 percent for bronchial asthma and a TDIU were inextricably intertwined with the propriety of the rating reduction. As such, these two issues were remanded to the RO for readjudication. The Board notes that a different VLJ, U.R. Powell, signed the December 2009 decision that was vacated by the Court, as well as the May 2011 remand to the RO in response to the Court's Order. However, as noted above, the undersigned VLJ held a hearing as to the issue of entitlement to a TDIU. During that hearing, the Veteran also testified as to the severity of his bronchial asthma currently and at the time of the actions by the RO to reduce the rating for such disability. This hearing was held while the case was pending on appeal to the Court, as it had been perfected to the Board after the prior denial of the increased rating claim, which the Court vacated. The Board's general policy is to return a case to the signing judge when it is remanded by the Court. However, if another judge conducts a hearing in the meantime, then the case will be assigned to that judge. Further, VLJ Powell did not hold a hearing concerning any of the issues on appeal in this case. Therefore, a panel decision is not necessary, and the undersigned VLJ may address all issues. In October 2011, the RO issued a rating decision affirming the reduction of the 100 percent rating for bronchial asthma, of which the Veteran was notified in November 2011. The Veteran appealed from that determination through a November 2011 notice of disagreement. A review of the Veteran's Virtual VA file shows that the RO notified the Veteran in a March 2012 letter that a Statement of the Case (SOC) would be provided. However, it does not appear that this has been completed. Accordingly, the case must be remanded for this purpose. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The claims of entitlement to a rating in excess of 60 percent for bronchial asthma and entitlement to a TDIU remain intertwined with the propriety of the rating reduction and, therefore, they must also be remanded. Additionally, development is necessary with respect to these latter issues. As noted above, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file, other than the March 2012 letter. Any further development or adjudication of this matter should take into account this paperless claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As directed in the prior remand, the RO adjudicated the issue of entitlement to a restoration of the prior 100 percent rating in a rating decision of which the Veteran was notified in November 2011. The Veteran appealed from that determination through a November 2011 notice of disagreement, but a Statement of the Case (SOC) has not yet been provided as this issue. Accordingly, the Board has no discretion, and the case must be remanded for this purpose. See Manlincon, 12 Vet. App. at 240. The RO should consider of all evidence of record and all relevant law as to reductions in ratings, to include 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.1, 4.2, 4.10, and 4.13 (2011). However, this issue will be returned to the Board for further consideration only if the Veteran files a timely substantive appeal after issuance of the SOC. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The claims of entitlement to a rating in excess of 60 percent for bronchial asthma and entitlement to a TDIU remain intertwined with the propriety of the rating reduction and, therefore, they must also be remanded. If the Veteran's prior 100 percent schedular rating for bronchial asthma is not restored, the RO should conduct further development as to these claims and then readjudicate these issues. Specifically, the RO should obtain any outstanding treatment records concerning the Veteran's bronchial asthma. The Veteran testified to urgent care within the year prior to the Board hearing, or sometime in 2009, at what appears to be Detroit Receiving Hospital, as well as to current treatment at VA facilities. The last currently available evidence from such private facility is dated in December 2004. Further, although VA treatment records have been obtained through December 2009, it does not appear that the full pulmonary function test (PFT) results have been associated with the claims file. Rather, there are several summaries of such results, with a notation to see VISTA for the full test results. These may contain post-bronchodilator results, which are important for rating purposes. Accordingly, the Veteran should be requested to identify and provide the necessary authorization for any outstanding VA or private treatment records. After any such records are obtained, the Veteran should be afforded a VA examination to determine the current severity of his bronchial asthma and whether it renders him unemployable for VA purposes. In offering such opinion, the examiner should consider the March 2011 private evaluation submitted by the Veteran, as well as the SSA records and all other pertinent lay or medical evidence of record. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a Statement of the Case on the issue of entitlement to restoration of the previous 100 percent rating for service-connected bronchial asthma, after consideration of all evidence of record and all relevant law, to include 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.1, 4.2, 4.10, and 4.13. See 38 C.F.R. §§ 19.29-19.30, Manlincon, 12 Vet. App. at 240. The Veteran should be advised that a substantive appeal has not been received concerning this issue, as well as of the requirements for submitting an adequate and timely substantive appeal. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). Thereafter, if a timely substantive appeal is filed and subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. See Smallwood, 10 Vet. App. at 97. 2. If the prior 100 percent schedular rating for bronchial asthma is not restored, request the Veteran to identify any outstanding treatment records pertaining to such disability. He should complete the necessary authorization (VA Form 21-4142) for any non-VA records, to include from Detroit Receiving Hospital. Thereafter, request copies of any identified, outstanding treatment records, including but not limited to any records from Detroit Receiving Hospital dated from 2009 forward, any VA records dated from January 2010 forward, and copies of any outstanding VA pulmonary function test (PFT) results dated from 2004 forward. All requests and all responses, including negative responses, should be documented, and all records received should be associated with the claims file. If any identified records cannot be obtained after reasonable efforts, the Veteran should be notified of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence. He should also be allowed an appropriate time to provide any missing records. 3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his bronchial asthma and any effects on employability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is requested to: (a) Measure and record any manifestations of the Veteran's service-connected bronchial asthma, to include any functional effects. (b) State whether it is at least as likely as not (probability of 50 percent or more) that the Veteran has been unable to secure or follow a substantially gainful occupation solely as a result of his service-connected bronchial asthma (or any other service-connected disabilities), either separately or together, at any point since February 1, 2006. The Veteran's level of education, special training, and previous work experience, but not the effects of his age or any nonservice-connected disabilities, should be considered. In addition, the examiner should consider the other opinions of record concerning the Veteran's level of functioning, including the March 2011 private evaluation from and the SSA records. The examiner should explain the reasoning (or rationale) behind any opinion offered. If an opinion cannot be offered without resorting to speculation, the examiner should indicate such in the report and explain why a non-speculative opinion cannot be offered. 4. After completing any further development as may be indicated by any response received upon remand, readjudicate the Veteran's claims for a rating in excess of 60 percent for bronchial asthma, and for a TDIU. All lay and medical evidence of record should be considered. If the claims remain denied, issue a supplemental statement of the case to the Veteran and his attorney, which addresses all evidence associated with the claims file since the last statement of the case, as well as all relevant law, including Mittleider, 11 Vet. App. at 182. Allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. 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). The purpose of the examination requested in this REMAND is to obtain information and/or evidence which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655 (2011), failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2011). _________________________________________________ C. TRUEBA 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) (2011).