Citation Nr: 1302161 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-19 208 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to a compensable rating for residuals of a shell fragment wound to Muscle Group VI. 2. Entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a May 2012 rating decision granted service connection for right elbow strain as a residual of shell fragment wound (SFW), and assigned a 10 percent rating effective March 28, 2006. Although the discussion in the rating suggests that this decision granted an increase in the Veteran's shrapnel wound disability, the Board notes that the Appeals Management Center (AMC) kept the noncompensable rating for shrapnel wound of the right upper arm under Diagnostic Code 5306-7805 intact. Thus, the AMC did not increase the rating for the shrapnel wound of the right upper arm; rather, it awarded service connection for a separate disability to the elbow. The Veteran has not disagreed with the 10 percent rating assigned to the newly service-connected right elbow strain disability, and that issue is not before the Board. In light of contentions in the record, the issue of entitlement to a TDIU has been added pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), wherein the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The appeal REMANDED to the RO via the AMC in Washington, D.C.; VA will notify the Veteran if further action is required on his part. REMAND Review of the VA outpatient treatment records associated with the claims file reflect that beginning in January 2006, the Veteran reported to his treating clinicians that he was in receipt of disability benefits from the Social Security Administration (SSA). Although it is likely that these records are dated prior to the appeal period, it is not clear from the Veteran's report at his VA outpatient visits whether the SSA benefits the Veteran is receiving are due to one or more of his service-connected disabilities, or even then, whether any of the records that were considered in the SSA decision are relevant to his claim. Because of this uncertainty, and because these records may help the Veteran substantiate his claims for an increased rating and/or TDIU, they must be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). On remand, efforts to obtain the SSA records must be made until the records are either obtained or it is determined that the records do not exist or that continuing efforts would be futile. 38 U.S.C.A. § 5103A; Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). The Board notes that the Veteran has not been provided with VCAA notice of the requirements for a TDIU claim, nor has a VA Form 21-8940 been provided to her to obtain employment information. Thus, on remand, the RO/AMC should provide appropriate notice to allow the Veteran an opportunity to submit evidence to support her claim. Further, during the course of his appeal with respect to his service-connected shell fragment wound of the right upper arm, the Veteran asserted in an October 2009 statement that his shrapnel wound disability impacted his employability. For this reason, the issue of whether a TDIU rating is warranted is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (holding that a request for a total disability evaluation on the basis of individual unemployability, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim). However, some evidence, to include an April 2007 VA psychosocial assessment and the April 2011 VA examination, reflects that the Veteran had a medical retirement from his last employment secondary to his nonservice-connected lumbar spine disability. The Veteran's representative has argued that there is compensable muscle disability as a result of the Veteran's shrapnel wound of the upper arm. Although service treatment records describe the shrapnel wound as a superficial laceration that was cleaned and dressed, a June 2006 QTC examination noted the Veteran giving a history of a deep penetrating wound requiring hospitalization and 5 days of treatment with destruction involving the nerve. The Board finds that a new VA muscle examination should be scheduled. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 2. Contact SSA and request a copy of all materials, to include medical records, related to the Veteran's SSA benefits. Once obtained, associate these records with the claims file or Virtual VA file. If SSA notifies VA that these records are unavailable, place a copy of this notification in the Veteran's claims file or Virtual VA file. 3. After the above has been completed to the extent possible, schedule the Veteran for a VA muscle examination to determine the nature of the Veteran's shrapnel wound residuals of the right upper arm (other than right elbow strain). The examiner should review the claims file in conjunction with the examination. The examiner should indicate which muscle group is involved, and describe all residual disability from the shrapnel wound (other than right elbow strain), to include whether examination reveals the shrapnel wound was deep and caused nerve damage. The examiner should also opine whether the Veteran's service connected residuals of shrapnel wound of the right upper arm renders him unable to secure or follow a substantially gainful occupation, without regard to age or nonservice connected conditions. 4. After undertaking the development above, and any additional development deemed necessary the Veteran's claim for an increased rating for residuals of shrapnel would of the right upper arm should be readjudicate, to include consideration of entitlement to a TDIU. If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). This claim must be afforded expeditious treatment. 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). ____________________________________________ K. A. BANFIELD 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) (2012).