Citation Nr: 1302065 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-14 746 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE 1. Entitlement to an increased (compensable) rating for pulmonary tuberculosis, minimal, inactive. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected pulmonary tuberculosis, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2009 rating decision in which the RO, inter alia, denied a compensable rating for the pulmonary tuberculosis. In March 2009, the Veteran filed a notice of disagreement (NOD). In April 2009, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9), Appeal to Board of Veterans' Appeals) in April 2009. As explained in further detail in the remand below, the Veteran asserted in an October 2008 statement that he was unable to work due to his service-connected pulmonary tuberculosis. Accordingly, and consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009), the appeal has been expanded to include the matter of the Veteran's entitlement to a TDIU due to his service-connected pulmonary tuberculosis. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. Initially, in a statement of record in October 2008, the Veteran specifically stated that he received treatment for his tuberculosis at the VA Medical Center (VAMC) in Little Rock, Arkansas. However, the most recent VA treatment records associated with the paper claims file are dated in September 1999, and the Veteran's paperless, electronic (Virtual VA) file does not include any additional VA treatment records. Thus, there appears to be relevant VA treatment records outstanding. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain from the Little Rock VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since September 1999, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The claims file also shows that that the Veteran is receiving disability benefits from the Social Security Administration (SSA). While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the RO should request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities, and to associate all records and/or responses received with the claims file. The Board further notes that the Veteran was last afforded a VA examination in October 2008, which was over four years ago. Importantly, it does not appear that the claims file was reviewed in conjunction with the examination. To ensure that the record reflects the current severity of the Veteran's pulmonary tuberculosis and in light of the additional evidence to be associated with the claims file, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, are needed to properly evaluate the service-connected disability under consideration. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA respiratory examination, by appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may well result in denial of the claim for increased rating. 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Regarding the claim for a TDIU due to the tuberculosis, the Board observes that total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). The Veteran has asserted that he is unable to work due to his pulmonary tuberculosis. The Board has found that this assertion appears to raise the matter of his entitlement to a TDIU in the context of his claim for a higher rating, the claim for a TDIU is essentially a component of the claim for a higher rating. See Rice, 22 Vet. App. at 447. In the February 2009 rating decision, the RO deferred adjudication of this matter, and the RO has not yet adjudicated a claim for a TDIU. Under these circumstances, after giving the Veteran an opportunity to file a formal claim for a TDIU, and completing the action pertinent to such claim, the RO should adjudicate the matter of the Veteran's entitlement to a TDIU due to pulmonary tuberculosis, in the first instance, to avoid prejudice to the Veteran. See e.g. Bernard v. Brown, Vet. App. 384 (1993). However, while these matters are on remand, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. In its letter, the RO explain what is needed to support a claim for a TDIU due to pulmonary tuberculosis. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. In adjudicating the claim for increased rating, the RO should consider and discuss whether "staged rating" (assignment of different rating for different periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is warranted. Also, in adjudicating the matter of a TDIU due to pulmonary tuberculosis, even if the percentage requirements of 38 C.F.R. § 4.16(a) are not met, the RO should consider whether the procedures for consideration of an extra-schedular TDIU, pursuant to 38 C.F.R. § 4.16(b), are invoked, Accordingly, these matters are hereby REMANDED for the following actions: 1. The RO should furnish to the Veteran a VA Form 21-8940 to enable him to file a formal application for a TDIU due to pulmonary tuberculosis. 2. The RO should obtain from the Little Rock VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since September 1999. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 3. The RO should request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 4. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. In its letter, the RO should explain what is needed to support a claim for a TDIU due to pulmonary tuberculosis, to include on an extra-schedular basis. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 5. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. After all records and/or responses received from each contacted entity have been associated with claims file, the RO should arrange for the Veteran to undergo VA respiratory examination, by an appropriate physician at a VA medical facility, for evaluation of his pulmonary tuberculosis. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should provide sufficient findings needed to assess the severity of the Veteran's pulmonary tuberculosis, to include identification of all residuals of the Veteran's pulmonary tuberculosis, and providing detailed results of all pulmonary function testing, if necessary. The physician should set forth all examination findings, together with the complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 8. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for increased rating for pulmonary tuberculosis, along with the matter of the Veteran's entitlement to a TDIU due to the disability. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claims on appeal, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claims on appeal in light of all pertinent evidence and legal authority (to include consideration of whether staged rating, pursuant to Hart (cited above), is warranted, as well whether the procedures for consideration of an extra-schedular TDIU due to pulmonary tuberculosis, pursuant to 38 C.F.R. § 4.16(b), are invoked). 10. If any benefit sought on appeal is denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered (in particular, 38 C.F.R. § 4.16(b)), along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).