Citation Nr: 1313302 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-21 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for sensorimotor peripheral neuropathy (axonal) of external-type, claimed as permanent nerve damage, pain in tendons, joints, and muscles due to isoniazid preventive therapy performed at the Chalmers P. Wylie VA Ambulatory Care Center in Columbus, Ohio, in April 2007. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to January 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and May 2010 rating decisions of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. At the hearing, the Veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304 (c). In an April 2011 statement of the case (SOC), the RO increased the evaluation for the Veteran's service-connected bilateral pes planus from 10 percent to 30 percent disabling, effective October 22, 2009. The Veteran was advised of the above grant of increased rating; however, he did not withdraw his appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims held that, on a claim for an original or increased rating, the Veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Thus, this appeal continues. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in his claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. At the January 2013 Board hearing, the Veteran testified that his service-connected bilateral pes planus has worsened in severity since the last VA examination. See the Board hearing transcript, p. 3. Review of the record indicates that the Veteran's last VA examination for his service-connected bilateral pes planus was in April 2010. The record reflects that the Veteran has not been afforded a more recent VA examination to assess the current severity of his bilateral pes planus, and his own personal testimony at the January 2013 Board hearing indicates that the Veteran's service-connected bilateral pes planus may have worsened in severity. The Board finds that further examination is required so that the decision is based on a record that contains a current examination. See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). With regard to both the increased rating claim and 1151 claim, the Veteran indicated at the January 2013 Board hearing that he was receiving treatment for his service-connected bilateral pes planus and neuropathy at the Washington, D.C., Columbus, Cincinnati, and Dayton VA medical facilities. See the Board hearing transcript, p. 14. Review of the Veteran's claims file and Virtual VA file shows VA outpatient treatment records from the Chalmers P. Wylie Ambulatory Care Center in Columbus, Ohio; Cincinnati VA Medical Center in Cincinnati, Ohio; and Washington, D.C. VA Medical Center in Washington, D.C. However, there are no VA outpatient treatment records from the Dayton VA Medical Center in Dayton, Ohio, which is a separate facility apart from the Chalmers P. Wylie Ambulatory Care Center in Columbus, Ohio, and Cincinnati VA Medical Center in Cincinnati, Ohio. As such, VA outpatient treatment records from the above stated facility must be obtained and considered. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA has constructive, if not actual, notice of this additional evidence to the extent generated within VA's healthcare system, so it is deemed to be in VA's possession, even if not physically in the file). See also 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2), (c)(3). Finally, at the January 2013 Board hearing, the Veteran testified that he has not worked since 2008. He previously worked as a security guard at the Department of Youth Services. See the Board hearing transcript, p. 14. He stated that the problems associated with his hands and feet have prevented him from working. This testimony reasonably raises the issue of entitlement to a TDIU. The United States Court of Appeals for Veterans Claims (Court) has held that there is no freestanding claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). The matter is a component of the appeal for a higher initial rating regarding the service-connected right shoulder disability. Id. at 452-53. As such, it is necessary for the Board to remand the issue. On remand, the agency of original jurisdiction (AOJ) will have the opportunity to include the issue in a new notice letter, ask the prospective VA examiner to address the matter, and adjudicate the issue in the first instance. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send a new notice letter to the Veteran and his representative. The letter should notify the Veteran of the information and evidence necessary to substantiate a claim for a TDIU. The letter should contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. The Veteran and his representative should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Obtain and associate with the claims file the Veteran's outstanding records of treatment from the Dayton VA Medical Center in Dayton, Ohio. All treatment records from the Columbus VA treatment facility, dated since January 2013, should also be obtained. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 3. Thereafter, schedule the Veteran for a VA podiatry examination to assess the current severity of his service-connected bilateral pes planus. The claims file and a complete copy of this REMAND should be reviewed in association with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should specifically describe the current severity and all manifestations associated with the Veteran's bilateral pes planus. Specifically, any evidence of pronounced disability, such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, should be noted. The examiner should determine whether any found symptoms are improved by orthopedic shoes or appliances. The examiner should also take a detailed history regarding the Veteran's employment, education and vocational attainment in connection with the claim for a TDIU. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected bilateral pes planus renders him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. The examiner should provide a comprehensive report including complete rationale for all opinions expressed and conclusions reached. 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal, including the issue of entitlement to a TDIU. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ P.M. DILORENZO 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).