Citation Nr: 1305950 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-08 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Entitlement to an initial compensable evaluation for service-connected callous of the right foot, with residual surgical scars. 2. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Karl Kazmierczak, Esq. WITNESSES AT HEARING ON APPEAL Appellant and M.G. ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1996 to January 2001, and from August 2001 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal was certified to the Board by the RO in Roanoke, Virginia. Subsequent to the issuance of the last supplemental statement of the case in June 2012, the Veteran submitted additional evidence to the Board that was not first considered by the RO. In July 2012 and December 2012, the Veteran provided waivers of RO consideration. 38 C.F.R. § 20.1304(c) (2012). The Veteran has alleged inability to retain employment due to his service-connected disabilities including his service-connected callous of the right foot with residual surgical scars. Entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. As such, the issue is now properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). The issue of entitlement to service connection for high blood pressure has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO. REMAND The Board is of the opinion that additional development is required before the Veteran's claim for an initial compensable evaluation for service-connected callous of the right foot, with residual surgical scars is decided. Initially, the record reflects that there are outstanding VA treatment records. In a December 2012 written statement, the Veteran indicated that since his August 2012 hearing, he obtained treatment at VA Medical Center (VAMC) emergency room due to continued severe pain in his foot. The claims file includes VA outpatient treatment records from the Hampton VAMC dated through May 2012. 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 in the evidence of record. 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 and associate with the Veteran's file all outstanding records of VA evaluation and/or treatment since May 2012. The RO must also obtain and associate with the claims file all other outstanding treatment records pertinent to the issue on appeal. The Veteran most recently underwent a VA examination to evaluate his service-connected callous of the right foot with residual surgical scars in June 2010, over 2 years ago. The Veteran reported experiencing constant pain, the examiner found that at that time the Veteran's service-connected right foot disorder was "quiescent" and noted that objective factors were absent. The examiner remarked that the effect of the Veteran's service-connected right foot disorder on his usual occupation and daily activity was mild. However, during the August 2012 hearing before the Board, the Veteran and his spouse testified that his right foot pain caused him to wake up during the night, he had problems walking, was unable to stand for more than an hour and a half, he had trouble wearing shoes, and his right foot disorder had caused him problems with his employment. The Veteran also explained that he experienced numbness in the toes that had increased in frequency, from once every couple of weeks to approximately every other day. Given the Veteran's testimony and the passage of time since the most recent VA examination was conducted, the Board concludes that a remand is required in order to afford the Veteran new a VA examination in order to determine the current severity of his service-connected callous of the right foot. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Finally, Veteran and his attorney have asserted that he is unable to hold a job due to service-connected conditions, to include the callous of the right foot, with residual surgical scars. Specifically, the Veteran's attorney stated in a July 2012 letter that the Veteran's callous of the right foot "makes it impossible for him to work[.]" Accordingly, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In addition, statutory and regulatory notice should be provided concerning the information and evidence necessary to substantiate a claim for TDIU. Further, the issue of entitlement to TDIU is inextricably intertwined and should be adjudicated by the RO with the initial rating claim the Board is now remanding. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (noting that where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is remanded for the following action: 1. The RO must send the Veteran proper statutory and regulatory notice that advises the Veteran about what is needed to substantiate a claim for TDIU. In addition, the Veteran must complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA treatment records from the VAMC in Hampton, Virginia since May 2012. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 3. The Veteran must be afforded an examination to determine the current severity of his service-connected callous of the right foot with residual surgical scars. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must conduct full range of motion studies on the service-connected callous of the right foot. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected callous of the right foot, with residual surgical scars. The examiner must state whether the callous of the right foot with residual surgical scars is mild, moderate, moderately severe, or severe; and whether the scars associated with the callous of the right foot are instable or painful. The report must be typed. 4. The Veteran must be afforded an appropriate VA examination to determine to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If a report is deficient in any manner, the RO must implement corrective procedures at once. 7. After completing all appropriate development, the RO must readjudicate the claim of entitlement to an initial compensable evaluation for his service-connected right foot disorder, to include adjudication of the issue of entitlement to TDIU. If any benefit sought on appeal remains denied, the Veteran and his attorney must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).