Citation Nr: 1320564 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-47 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for cystic fibrosis. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from July 2003 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the appellant filed a claim for an increased rating in November 2008, less than one year after the July 2008 rating decision granting his claim for service connection for cystic fibrosis. As the appellant did not express disagreement with the July 2008 rating decision, the Board agrees with the RO's decision to construe the claim as a new claim for an increased rating rather than a notice of disagreement. In August 2010, the appellant presented testimony at a personal hearing conducted at the Detroit RO before a Decision Review Officer (DRO). A transcript of this hearing has been associated with the appellant's claims folder. A TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). When evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. As discussed below, the evidence of record indicates that the Veteran's service-connected disabilities interfere with his ability to work. Thus, the Board finds that a claim for a TDIU was raised by the evidence of record and is currently before the Board on appeal as part and parcel of the claim for an increased evaluation. 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 appellant was afforded VA examinations in May 2010 and April 2012 to determine whether he is entitled to a higher rating for his service-connected cystic fibrosis. However, the Board finds that the VA examinations are inadequate. The appellant has asserted that his cystic fibrosis has worsened. The April 2012 VA examiner did not perform a pulmonary function test (PFT). Instead, the examiner used the results of the appellant's PFT test from March 2010. The examiner noted that the PFT results reported below did not accurately reflect that appellant's pulmonary function. He also noted that airflow was mildly reduced in a non-specific pattern. However, he did not provide any current PFT results. The Board finds that the March 2010 PFT results are not sufficiently contemporaneous to determine the appellant's claim. Therefore, the Board finds that a VA another examination with a PFT test is necessary prior to appellate adjudication of this issue. There is no specific Diagnostic Code for cystic fibrosis. The appellant's cystic fibrosis has been rated under Diagnostic Code 6699-6603, as equivalent to pulmonary emphysema. The appellant has received VA examinations that addressed the respiratory symptoms of cystic fibrosis. However, at the August 2010 RO hearing, the appellant stated that his cystic fibrosis affected his ability to digest food properly and affected his pancreas. (August 2010 RO Hearing Transcript at p. 2) He also stated that he took medication for symptoms of occasional constipation and diarrhea. (Tr. at p. 3) Cystic fibrosis symptoms include chronic pulmonary disease, pancreatic deficiency, abnormally high levels of electrolytes in the sweat, and occasionally biliary cirrhosis. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 712 (31st ed. 2007). As the appellant described having non-respiratory symptoms of cystic fibrosis that were not addressed by the VA examiners in the May 2010 and April 2012 VA examinations, a new VA examination is necessary to address these symptoms. At the August 2010 RO hearing, the appellant stated that he received all of his treatment for cystic fibrosis at VA. He stated that he had an appointment around August 20, 2010, at the Dallas VA Medical Center. (Tr. at pp. 7-8) The most recent VA treatment records in the claims file only date to September 2009. As more recent VA treatment records, including a record of the August 2010 VA appointment referenced by the appellant at the RO hearing, having not been associated with the claims file, the claim must be remanded to obtain the records. Entitlement to TDIU was denied in a January 2011 rating decision and the Veteran did not appeal that decision. The April 2012 VA examination includes the Veteran's report that he cannot work because of his service-connected cystic fibrosis and the examiner's comment as to what type of employment the Veteran could maintain. Thus, evidence dated after the January 2011 rating decision addresses the question of whether the Veteran is unemployable due to his service-connected disability. Therefore, regardless of the January 2011 rating decision, the Board finds that the issue of TDIU has been reasonably raised (re-raised) by the record and is properly before the Board. See Rice, supra; Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2011). The Veteran's only service-connected disability is cystic fibrosis, currently evaluated as 30 percent disabling. Thus, his disability percentage rating does not currently meet the scheduler requirements for a TDIU under 38 C.F.R. § 4.16(a). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran must be provided with appropriate notice of how to establish a claim for TDIU. In addition, as there is evidence that the Veteran may be unemployable, he must be afforded a VA medical examination in regard to whether he is unemployable due to his service-connected disability. Thereafter, any additional development required and adjudicate the claim Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice with regard to the claim for TDIU and ask that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 2. Obtain all of the appellant's VA treatment records from September 2009 to present, including VA treatment records from the Dallas VA Medical Center in August 2010. If no records are available, the claims folder must indicate this fact. 3. After completion of the above and after any records obtained have been associated with the claims file, schedule the appellant for a VA examination to determine the current severity of the appellant's cystic fibrosis, to include respiratory symptoms, digestive symptoms, and any other symptoms related to cystic fibrosis, and the functional impairment. All indicated tests and studies should be conducted, to include a pulmonary function test (PFT). All findings should be made available to the physician prior to the completion of their report, and all clinical findings should be reported in detail. The examiner should (a) comment on the functional impairment caused by the Veteran's cystic fibrosis, to include symptoms that have been identified as related to the cystic fibrosis and (b) provide an opinion as to whether the cystic fibrosis renders him unable to secure or follow a substantially gainful occupation. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 4. Thereafter, readjudicate the issue of increased rating for cystic fibrosis and entitlement to TDIU, to include on an extraschedular basis. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). _________________________________________________ M. E. LARKIN 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).