Citation Nr: 1316232 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-17 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for service-connected residual fracture of the left foot, with swollen ankle and degenerative joint disease, currently rated 30 percent disabling. 2. Entitlement to total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to February 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 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. In the written brief presentation, the representative raised issues of entitlement to service connection for hemorrhoids and hearing loss; and appears to be arguing for the claim of service connection for scoliosis of the spine to be reopened. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are REFERRED to the AOJ for appropriate action. Moreover, the representative has alleged that it has been a while since the Veteran had an examination for headaches. However, no claim for an increased rating for headaches has been made, nor did the representative allege that the headaches had worsened. Rather, the representative simply states that an examination is necessary because of the passage of time. Additionally, it appears the representative is attempting to prognosticate an additional disability by asking for examination for a gastric condition because no side effects from medication existed in 2008 but might now. In essence, the representative is requesting examinations for issues that are not pending and not on appeal simply because time has passed. However, the mere passage of time is insufficient to trigger VA's duty to provide a new medical examination. Palczewski v. Nicholson, 21 Vet .App. 174, 182 (2007) (holding that where claimant has not alleged a worsening of a service-connected disability, there exists no duty under 38 U.S.C. § 5103A for the Secretary to provide a medical examination). The question of whether the representative's statement rises to the level of claims for increase for headaches and for service connection for a gastric disorder (should one even exist) is REFERRED to the AOJ for clarification, and if necessary, appropriate action. 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 is currently in receipt of a 30 percent rating for his service-connected left ankle and foot disability under Diagnostic Code 5010-5270, which rates ankylosis of the ankle. Such is curious, as the medical evidence indicates the Veteran actually does have the ability to move his ankle in plantar flexion and dorsiflexion. Indeed, in a 2008 private report, the Veteran had 40 degrees of plantar flexion. The Veteran's representative points out that the Veteran last compensation examination was in September 2007, and that the Veteran's symptomatology has increased in severity since then. As the record may not accurately reflect the current severity of the service-connected left foot and ankle disability another examination is warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In addition, the Veteran should be asked to identify any relevant ongoing medical treatment. 38 U.S.C.A. § 5103A(c) (West 2002). Further, in the April 2013 informal brief, the Veteran's representative asserted that the Veteran's service-connected left ankle and foot 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). Appropriate development should be conducted, to include issuance of a notice letter pursuant to the Veterans Claims Assistance Act and completion of a VA Form 21-8940. Accordingly, the case is REMANDED for the following action: 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. Ask the Veteran to provide the names, addresses, and dates of treatment for all medical care providers, both VA and private, who have recently treated him for his left ankle and foot disability. After securing the necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran and his representative should be notified of such. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA foot examination, to include a complete physical examination, to determine the current severity of his service-connected residuals of a left ankle and foot disability. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The claims folder must be reviewed in conjunction with the examination. The examination report should specifically state the degree of disability present in the Veteran's left ankle and foot and his current range of motion, as well as identify any objective evidence of pain. The examiner should also be asked to evaluate any functional loss due to pain or weakness, and to document all objective evidence of those symptoms. The examiner should also comment on the impact of the Veteran's service-connected residuals on his ability to obtain and maintain gainful employment, without regard to age or nonservice connected conditions. All opinions must be accompanied by an explanation of the underlying reasons for the conclusion. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 4. After undertaking the development above, and any additional development deemed necessary the Veteran's claim for an increased rating for left ankle and foot disability should be readjudicated, to include consideration of entitlement to a TDIU. If the benefits sought on appeal remain denied, provide a Supplemental Statement of the Case that includes appropriate TDIU regulations, and provide an appropriate period of time in which to respond. Then, return the appeal to the Board, if 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). 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). _________________________________________________ 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).