Citation Nr: 1317602 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-44 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1977 and from January 1978 to July 1979. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2013, the Veteran testified at a videoconference conference with the undersigned Veterans Law Judge. At that hearing, the Veteran testified that he stopped working because of his service-connected disabilities. Hearing transcript, page 11. Thus, the issue of entitlement to a total disability rating based on individual unemployability has been raised. The Board has to take jurisdiction over this issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) because under current case law it is essentially a component of the claims for higher ratings for the bilateral peripheral neuropathy of the lower extremities. 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 As noted, the Veteran testified at a personal hearing before the undersigned. Given the disparity between his description of his symptoms and the results of his VA examinations, the Board finds that an additional examination is warranted to clarify the severity of his peripheral neuropathy of the lower extremity. An opinion should also be obtained regarding the claim for a TDIU. The Veteran has been granted Social Security disability benefits. Although a February 2011 report of general information indicates that all medical evidence has been associated with the file, the record does not appear to include the decision awarding benefits from that agency. This document should be obtained and associated with the claims file. The Veteran has not been provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to a total disability rating based on individual unemployability, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). The RO last added VA treatment records from the Oklahoma City VA Medical Center to Virtual VA in April 2012. The AMC should obtain all records from the Oklahoma City VA Medical Center since April 2012. Accordingly, the case is REMANDED for the following action: 1. The AMC must provide the Veteran a formal application for his claim of entitlement to a total disability rating based on individual unemployability. The AMC should provide the Veteran notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The AMC should undertake any additional development in response to a completed formal application. 2. The AMC should ask the Veteran to identify all treatment for his bilateral neurological disorder of the lower extremities, as well as any treatment that may be relevant to his claim for a TDIU. The AMC should obtain all identified records, and the appellant's assistance should be requested as needed. Regardless of the claimant's response, the AMC should obtain all records from the Oklahoma City VA Medical Center since April 2012. Any obtained records should be associated with the appellant's claims file. 3. The AMC should contact the Social Security Administration in order to obtain any additional records that may be available pertaining to the Veteran's disability claim. In particular, copies of all decisions rendered by that agency must be requested. Any such records so obtained should be associated with the Veteran's VA claims folder. 4. Thereafter, the Veteran must be afforded a VA examination to determine the nature and extent of his bilateral peripheral neurological disorder of the lower extremities. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to his bilateral peripheral neurological disorder of the lower extremities. The examiner is also requested to provide an opinion and findings as to whether there is neuritis or peripheral neuropathy in each lower extremity, and the examiner should indicate which nerve or nerves are affected by any neuritis or peripheral neuropathy found. If neuritis is diagnosed, the examiner should indicate whether it is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating. The examiner should describe the severity in terms of mild, moderate, moderately severe, or severe. A complete rationale for any opinion offered must be provided. The examiner should determine whether the Veteran is unemployable due to service-connected disabilities. The claims folder is to be made available to the examiner to review. The examiner must opine whether there is a 50 percent or better probability that that the Veteran is unable to obtain and retain substantially gainful employment based on the service-connected bilateral neurological disorder of the lower extremities, lumbar spine degenerative arthritis, peripheral neuropathy of the right upper extremity, tinnitus, bilateral hearing loss, and, any additional disabilities for which service connection is established following the date of this remand. A complete rationale for any opinion offered must be provided. 5. The Veteran is to be notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. After the development requested, the AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the AMC must implement corrective procedures at once. 7. Thereafter, the AMC must readjudicate the issues on appeal, to include the adjudication of the issues of entitlement to an increased rating for peripheral neuropathy of the right lower and left lower extremities; and entitlement to a total disability rating based on individual unemployability. If any benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ MICHAEL LANE 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).