Citation Nr: 1306314 Decision Date: 02/25/13 Archive Date: 04/10/13 DOCKET NO. 09-07 664 ) DATE FEB 25 2013 On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable disability rating for residuals of surgery for a throat condition. 2. Entitlement to an initial compensable disability rating for indurated abscess/cyst of the neck. 3. Entitlement to service connection for a left leg disability. 4. Entitlement to service connection for a right leg disability. 5. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and A.E. ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to June 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted service connection for an indurated abscess/cyst of the neck and assigned a noncompensable disability rating, effective April 20, 2005. The Veteran submitted new evidence concerning her indurated abscess/cyst of the neck in July 2006 and November 2006, within one year of the issuance of the December 2005 rating decision. 38 U.S.C.A. § 7105(b)(1), (c); 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2010) (A regional office decision becomes final "only after the period for appeal has run," and that "[a]ny interim submissions before finality must be considered by the VA as part of the original claim."). Thus, the December 2005 rating decision granting service connection and assigning a noncompensable disability rating for the Veteran's indurated abscess/cyst of the neck never became final. Subsequently, in a February 2007 rating decision, the RO continued a noncompensable disability rating for the Veteran's indurated abscess/cyst of the neck. Additionally, the RO denied service connection for left and right leg -2- conditions, and granted service connection for residuals of surgery for a throat condition and assigned a noncompensable disability rating, effective April 20,2005. The Veteran filed a notice of disagreement (NOD) with these determinations in March 2007, and timely perfected her appeal in February 2009. In an October 2012 statement, the Veteran noted that her right and left leg pain, and her service-connected cyst of the neck and residuals of surgery for a throat condition caused problems with maintaining employment due to days missed for the above mentioned conditions. Additionally, she reported that she had been unemployed since November 2007. The Board interprets this statement as raising a claim for total disability rating based on individual unemployability due to a service-connected disability. The RO has not expressly developed or adjudicated that issue. Nevertheless, a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009). When, as here, evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part of the claim for benefits for the underlying disability. Here, the Veteran raised the issue of entitlement to TDIU while challenging the rating for a cyst of the neck and residuals of surgery for a throat condition. Therefore, her TDIU claim is part of the increased rating claims for a cyst of the neck and residuals of surgery for a throat condition, and the Board has jurisdiction over these issues. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of service connection for left and right leg disabilities, a compensable disability rating for cyst of the neck and residuals of surgery for a throat condition, and a TDIU. -3- A. Left and Right Leg Disabilities The Veteran contends that her left and right leg disabilities are secondary to her service-connected thoracolumbar strain, associated with degenerative disc disease of the cervical spine with muscle spasms. The Veteran's service treatment records document complaints of and treatment for a left leg injury. March 1986 treatment records show that the Veteran fell down a ladder, which resulted in a left leg contusion. Additionally, a July 1985 record shows that the Veteran complained of left leg pain, and was diagnosed with a left leg muscle strain. Current VA treatment records document multiple complaints of leg pain. Additionally, the records show a diagnosis of polyarthralgia, but it is unclear if this diagnosis is in reference to the Veteran's right and left legs. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain . sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Although service treatment records show an in-service left leg injury, the Veteran has provided competent reports of continuity of symptomatology, and that she is being treated for left and right leg conditions, VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of the Veteran's left and right leg conditions. Although the Veteran has been seeking -4- treatment from the VA for this condition, it remains unclear to the Board whether the Veteran's left and right leg conditions are related to any aspect of her military service. Additionally, it is unclear to the Board if the Veteran's left and/or right leg conditions were caused and/or aggravated (permanently worsened) by her service-connected cervical and/or thoracolumbar spine conditions. A medical opinion regarding a diagnosis and etiology of the Veteran's left and right leg conditions are therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). B. Cyst of the Neck and Residuals of Surgery for a Throat Condition The Veteran contends that her cyst of the neck and residuals of surgery for a throat condition are worse than the noncompensable disability evaluations currently assigned. The Veteran was last given a VA examination in November 2006 in order to establish the severity of her service-connected cyst of the neck. Additionally, the Veteran was last seen by an Ear, Nose, and Throat (ENT) physician in November 2006 in order to evaluate her service-connected residuals of surgery for a throat condition. At the October 2012 Travel Board Hearing, the Veteran reported throat symptoms such as persistent hoarseness, aches, soreness, and difficulty communicating and eating. The Veteran also reported symptoms of her cyst, to include a painful and tender incision, swollen throat, pus, and coughing up mucus. In this particular case, the November 2006 VA examination and ENT evaluation are too remote in time to address the current severity of the Veteran's service-connected residuals of surgery for a throat condition and cyst of the neck. See Snuffer v. Gober, 10 Vet. App. 400,403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that her disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand these matters to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of residuals of surgery for a throat condition -5- and cyst of the neck. See Snuffer v. Gober, 10 Vet. App. 400,403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). C. TDIU Furthermore, with respect to the Veteran's claim for a TDIU rating, the Board finds that this claim is also inextricably intertwined with her pending increased rating claims. The TDIU claim cannot be reviewed while those pending claims remain unresolved. Thus, adjudication of the TDIU claim must be held in abeyance pending further development of the Veteran's increased rating claims. Moreover, because the Veteran has not yet undergone a VA examination with respect to her TDIU claim, the Board finds that, on remand, she should be afforded a VA examination and opinion to ascertain the impact of her service-connected disabilities on her employment. Furthermore, if the RO determines, on remand, that service connection is warranted for any additional disability, the impact of that disability on the Veteran's unemployability should also be addressed. Friscia v. Brown, 7 Vet. App. 294 (1995) (VA has a duty to supplement the record by obtaining an examination that includes an opinion as to the effect of the Veteran's service-connected disabilities on her ability to secure or follow a substantially gainful occupation). Lastly, a remand is also necessary to obtain outstanding VA medical records. The record reflects that the Veteran was receiving periodic treatment at the VA through September 2012. At the October 2012 Board hearing, the Veteran reported that she was currently receiving treatment at the East Point VA Medical Center. Because it appears that there may be outstanding VA medical records dated after September 2012 that may contain information pertinent to her claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). The appellant should also be offered the opportunity to submit any private treatment records in support of her claim. Accordingly, the case is REMANDED for the following action: -6- 1) The AMC should obtain any of the Veteran's outstanding VA treatment records dated from September 2012 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of her claim. 2) The RO should provide the Veteran with appropriate notice of the evidence and information needed to establish a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disability. Additionally, the RO should undertake any development it deems necessary. 3) After the foregoing, the AMC/RO should schedule the Veteran for an orthopedic VA examination to assess the nature and etiology of her left and right leg disabilities. The claims file and a copy of this Remand should be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests, including x-rays, should be conducted. A. The examiner should diagnose any leg and/or right leg condition(s) found to be present. B. For all leg disabilities diagnosed, the examiner should opine as to whether it is at least as likely as not that any current leg disability, had its onset in service or is related to any in-service disease, event, or injury. -7- C. Additionally, the examiner should state whether it is at least as likely as not that the Veteran's right and/or left leg condition(s) was caused or aggravated (i.e., permanently worsened beyond the nature progress of the disease) by her service-connected thoracolumbar strain and/or degenerative disc disease of the cervical spine with muscle spasms. Please specifically address whether there was any increase in severity of the Veteran's left and/or right leg condition(s) that was proximately due to or the result of the Veteran's service-connected cervical and/or thoracolumbar spine disabilities, and not due to the natural progress of the Veteran's right and/or left leg condition(s). In offering these opinions, the examiner should specifically acknowledge and comment on the evidence of record, such as service treatment records, to include July 1985 and March 1986 reports of a left leg injury; VA outpatient treatment records; private treatment records; the October 2012 hearing transcript; lay statements; and any other relevant information. Furthermore, the examiner should also specifically comment on the effects of the Veteran's left and/or right leg condition(s) on her occupational functioning and daily activities. The examiner should opine as to whether the Veteran's left and/or right leg condition(s) renders her unable to secure or follow a substantially gainful occupation. Consideration may be given to -8- the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Additionally, the Veteran should be scheduled for a new diseases of the nose and throat VA examination to determine the current level of severity of her service-connected residuals of surgery for a throat condition. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary testing should be provided. The examiner should write a comprehensive report discussing the current severity of the Veteran's residuals of surgery for a throat condition, with particularity to the criteria for the appropriate diagnostic codes. Furthermore, the examiner should also specifically comment on the effects of the Veteran's residuals of surgery for a throat condition on her occupational functioning and daily activities. The examiner should opine as to whether the Veteran's service-connected disability renders her unable to secure or follow a -9- substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5) Further, the Veteran should be scheduled for a VA skin examination to determine the current level of severity of her service-connected indurated abscess/cyst of the neck. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. The examiner should describe the current nature, extent, and severity of the Veteran's indurated abscess/cyst of the neck, with particularity to the criteria for the appropriate diagnostic codes. Additionally, the examiner should provide a description of each scan including the size and location. Furthermore, the examiner should discuss whether the scars are superficial (not associated with underlying soft tissue damage) or deep (associated with underlying soft tissue damage); surface contour is elevated or depressed on palpation; hopo- or hyper- -10- pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.); causes limitation of motion; is unstable (has frequent loss of covering of skin over the scar); and/or is painful on examination. Furthermore, the examiner should also indicate whether any of the scars cause any limitation of the affected part. Furthermore, the examiner should also specifically comment on the effects of the Veteran's indurated abscess/cyst of the neck on her occupational functioning and daily activities. The examiner should opine as to whether the Veteran's service-connected disability renders her unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6) Lastly, the Veteran should be schedule for a VA examination to evaluate the impact of her service-connected disabilities in the aggregate on her employability. The claims folder and a copy of this -11- remand must be reviewed by the examiner in conjunction with the examination and the review should be noted in the examination report. The examiner should opine as to whether the Veteran's service-connected disabilities (left shoulder strain, right shoulder strain, thoracolumbar strain, degenerative disc disease of the cervical spine with muscle spasms, residuals of surgery for a throat condition, and indurated abscess/cyst of the neck), render her unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 7) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). -12- 8) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC readjudicate the Veteran's claims, to include whether a TDIU is warranted. If a claim remains denied, the AMC should then provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). DEBORAH W. SINGLJETON 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). -13-