Citation Nr: 1316435 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-46 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 2. Entitlement to an increased disability rating for degenerative changes of the lumbar and thoracic spine. 3. Entitlement to an increased disability rating for bilateral calcaneal spurring, ankle strain and pes planus. 4. Entitlement to an increased disability rating for bilateral knee strain. 5. Entitlement to service connection for a heart disorder. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for sleep apnea, headaches, chronic fatigue, skin rash, and joint pain due to undiagnosed illness. REPRESENTATION Appellant (Veteran) represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. Relevant evidence has not been added to either claims file since the statement of the case (SOC) dated in August 2010. 38 C.F.R. §§19.31, 20.1304 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. In a January 2007 statement, the Veteran indicated an interest in claiming service connection for posttraumatic stress disorder, and for sinus and cholesterol disorders. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over the claims. Each is therefore referred to the AOJ for appropriate action. REMAND The Board finds remand warranted for three reasons. First, it is not clear from the record whether the Veteran desires a hearing before the Board. On his September 2010 VA Form I-9, he indicated that he desired a hearing before the Board to be convened in Washington, DC. But then in comments written on the substantive appeal, he indicates that he would not be able to attend the hearing in Washington, DC. Adding to the confusion is a note on the April 2012 Certification of Appeal, stating that "BVA hearing in Washington, DC requested, not yet held." It can be fairly inferred by the comments on the substantive appeal that the Veteran (despite his use of a double-negative phrase) "cannot" appear for a hearing in Washington, DC. However, it is not clear whether he wants to appear before the Board at the RO, via either a travel Board hearing or a videoconference hearing. The RO should clarify whether the Veteran desires either such hearing. Second, remand is warranted for additional medical inquiry into the claim to a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). The Board notes that the Veteran's service-connected disabilities meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2012). The Veteran's claim to a TDIU is addressed by four VA compensation examination reports of record - two in December 2007 and two in May 2010. Each report indicates that the Veteran was not unemployable due to service-connected disorders. But neither examination report indicates a review of the claims files (two reports indicate review of VA medical evidence). The Veteran should be provided with a VA compensation examination which addresses all evidence of record, to include lay evidence as well as VA, and private, medical evidence of record. The Board notes of relevance December 2007 private treatment records which indicate that the Veteran is disabled, and also a letter of record from the Veteran's treating VA physician who, in September 2007, stated that the Veteran was totally disabled due to nonservice-connected obesity and respiratory disorders. Third, with regard to issues 2 through 7 noted above, a SOC should be issued in response to a January 2007 notice of disagreement (NOD). That NOD contested the RO's February 2006 decision to deny: increased ratings for degenerative changes of the lumbar and thoracic spine, for bilateral calcaneal spurring, ankle strain and pes planus, and for bilateral knee strain; and which denied service connection for a heart disorder, hypertension, and sleep apnea, headaches, chronic fatigue, skin rash, and joint pain due to undiagnosed illness. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Finally, upon remand, any outstanding VA treatment records relating to the claim on appeal that have not yet been associated with the claims file should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should clarify with the Veteran whether he desires a travel Board hearing at the RO, or a videoconference hearing before the Board at the RO. If he indicates a desire for either type of hearing, such a hearing should be scheduled and no further action should be taken on this matter. If the Veteran indicates that he does not want to appear before a hearing, the RO should continue developing this appeal as noted below. 2. Obtain any relevant VA treatment records that have not yet been associated with the claims file. 3. Schedule the Veteran for an appropriate VA examination for his claim for entitlement to TDIU. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should elicit a history from the Veteran regarding his recent employment and examine the Veteran thoroughly. After reviewing the claims files (to include all private and VA medical evidence, and the lay evidence of record from the Veteran and his spouse), noting the Veteran's reported history, and examining the Veteran, the examiner should render an opinion as to whether the Veteran is precluded solely by reason of his service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner is advised that only symptoms related to the Veteran's service-connected disabilities should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities or circumstances should not be considered in this determination. The examiner should explain the reasons behind any opinions provided. 4. Then, readjudicate the TDIU claim. In particular, review all the evidence that was submitted since the August 2010 SOC was issued. If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental SOC. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 5. Issue a SOC in response to the Veteran's January 2007 NOD with regard to the claims for increased ratings for degenerative changes of the lumbar and thoracic spine, for bilateral calcaneal spurring, ankle strain and pes planus, and for bilateral knee strain; and for service connection for a heart disorder, hypertension, and sleep apnea, headaches, chronic fatigue, skin rash, and joint pain due to undiagnosed illness. The Veteran must be provided with information about his rights and responsibilities in perfecting an appeal on these issues and be given an opportunity to respond. 6. Only if the Veteran responds by submitting a timely substantive appeal, return the issues subject to the January 2007 NOD to the Board for further review. The Veteran 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). _________________________________________________ MICHAEL A. PAPPAS 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).