Citation Nr: 1316094 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-41 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a compensable rating for residuals of thrombosis of the right subclavian vein (vascular disability). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to September 1967, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that denied entitlement to a compensable rating for the Veteran's vascular disability. The issue of entitlement to TDIU was not certified for appeal. Where, however, there is evidence of unemployability submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the evidence shows that Veteran is not employed and given that he reports that his service-connected vascular disability impairs his ability to work, the issue of entitlement to TDIU has been raised. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's increased rating claim, it has been listed on the first page of this decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 The Veteran seeks a higher rating for his service-connected residuals of thrombosis of the right subclavian vein disability. While delay is regrettable, especially since the Veteran filed this claim for an increased rating in December 2005, the Board finds that additional development is needed in this case. The record shows that the Veteran reports significant residual impairment, and the medical evidence indicates that he has been diagnosed as having right thoracic outlet syndrome. The Veteran also reports that exercise and exertion are precluded by his service-connected disability. The Veteran's symptoms include right upper extremity pain, swelling, numbness, weakness and fatigue, which the Board observes may warrant a 20 percent evaluation under Diagnostic Code 7113. The Veteran reports receiving VA treatment; however, records of his care, other than a March 2007 VA outpatient treatment record, has not been physically or electronically. All relevant VA treatment records should either be made accessible on Virtual VA or be printed and added to the file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, in a January 2007 written statement, the Veteran indicated that had been treated at the Cleveland Vascular Institute. In the April 2007 VA examination report, the examiner noted a review of the progress notes dated July 31, 2006 from the Cleveland Vascular Institute and progress notes dated August 8, 2006 from Marymount Hospital. A review of the entire record does not reflect that these treatment records have been associated with the Veteran's claims file. Also, in an October 2009 written statement the Veteran indicated that he had been treated by two private physicians, Dr. Stanley and Dr. Martinez. Treatment records from the private physicians are not contained in the Veteran's file. On remand, the RO should contact the Veteran and ask that he identify any additional, pertinent non-VA treatment records that are outstanding, to include the records from the Cleveland Vascular Institute and Marymount Hospital and from Dr. Stanley and Dr. Martinez. See 38 C.F.R. § 3.159(c) (2012). Also, the most recent VA examination of the Veteran's residuals of thrombosis of the right subclavian vein disability was in April 2007, more than six years ago. In addition, the Veteran challenges the adequacy of the April 2007 VA examination on the basis that it was conducted while he was at rest and thus does not contain findings pertinent to the true severity of the disability. In light of the Veteran's contentions and state of the record, the Board finds that the claim should be remanded for an examination to assess the current severity of the Veteran's subclavian vein disability. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Finally, with respect to the TDIU aspect of his claim, the Board observes that the Veteran served in combat in Vietnam and the medical evidence shows that he is being treated for posttraumatic stress disorder (PTSD) and for diabetes mellitus. See March 2007 VA outpatient treatment records. Further, he asserts that he has a sleep disorder due to his service-connected vascular disability. Although the Board would generally refer these issues to the RO for its initial consideration, because they are inextricably intertwined with his TDIU claim, the Board finds that a remand is required. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are inextricably intertwined). Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to a TDIU and to service connection for PTSD, diabetes mellitus and sleep disorder, as well as VA's and the Veteran's responsibilities to provide evidence and information in support these claims. The Veteran should be provided an appropriate amount of time to respond to this notification. This notification should be associated with the claims folder. 2. The RO should contact the Veteran and ask him to identify any additional sources of VA and non-VA treatment for his thrombosis of the right subclavian vein disability, to include the Cleveland Vascular Institute and Marymount Hospital and Dr. Stanley and Dr. Martinez, as well as well as for any records of his treatment for PTSD, diabetes mellitus and sleep disorder. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all records referred to by the Veteran not already of record, including any pertinent VA treatment records. The RO must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his right subclavian vein symptoms, as well as the impact of the condition, as well as his PTSD, diabetes mellitus and/or sleep disorder on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. The Veteran should be scheduled for an appropriate VA examination to determine the severity of his vascular disability. The claims folder should be made available and reviewed by the examiner and all necessary tests and should be conducted. All indicated tests and studies deemed necessary, should be conducted. The examiner should record pertinent medical complaints, symptoms, and clinical findings, and indicate whether the complaints and reported symptoms are supported by the objective findings. The examiner must describe in detail all symptoms reasonably attributable to the service-connected disability and its current severity. In addition, the examiner should clarify if the service-connected disability is venous or arterial in nature. If the Veteran's condition is considered arterial, the examiner should specify whether the Veteran's service-connected disability is affected by the large or small artery. The examiner should also report all symptoms of thoracic outlet syndrome. The examiner must also state whether the vascular disability is manifested by claudication on walking, and if so, at what distance. The examiner must also report as to whether the vascular disability is productive of diminished peripheral pulses or trophic changes. In addition, the examiner should describe the extent of the Veteran's right upper extremity weakness, pain, numbness, fatigue, swelling and/or stasis dermatitis. The examiner must also comment on the impact of the Veteran's vascular disability on his ability to obtain and retain gainful employment. Further, a diagnosis of ischemic heart disease must be ruled in or excluded. The examiner must also indicate whether the Veteran has a sleep disorder, and if so, whether it is related to service or was caused or aggravated by his service-connected vascular disability. All findings and conclusions should be set forth in the examination report. 5. The RO should afford the Veteran any appropriate examinations to adjudicate whether service connection is warranted for PTSD and diabetes mellitus. 6. Thereafter, the RO must readjudicate the Veteran's claim for a compensable rating for his vascular disorder and adjudicate whether service connection is warranted for PTSD, diabetes mellitus and sleep disorder, as well as the Veteran's entitlement to a TDIU. If the appeal is not granted in full, the Veteran and his representative should be provided with a supplemental statement of the case and be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board if in order. The appellant 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 the 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). _________________________________________________ STEVEN D. REISS 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).