Citation Nr: 1325525 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 08-20 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sinusitis. 2. Entitlement to an initial rating in excess of 10 percent and in excess of 30 percent from September 17, 2009 for migraine headaches. 3. Entitlement to an initial rating in excess of 10 percent for hallux valgus with capsulitis, left great toe. 4. Entitlement to an initial rating in excess of 20 percent for a cervical spine disability. 5. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability. 6. Entitlement to an initial rating in excess of 10 percent for residuals of a rectocele repair status post posterior vaginal defect with hemorrhoids and constipation. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: David L. Huffman, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from June 1997 to February 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In December 2009, the Veteran testified at a hearing with RO personnel. A transcript of that proceeding is of record. A June 2010 rating action denied a temporary total rating for convalescence following gastrointestinal surgery. The Veteran filed a notice of disagreement and a statement of the case was issued in November 2012. The Veteran did not file a substantive appeal and that matter is not in appellate status. See 38 C.F.R. § 20.200 (2009) (An appeal consists of a timely filed notice of disagreement in writing and after a statement of the case has been furnished, a timely filed substantive appeal.). In April 2013, the Veteran testified at a hearing by videoconference technology before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). A review of the record reflects that the Veteran has filed a notice of disagreement (dated January 2010) with the evaluation for residuals of a rectocele repair status post posterior vaginal defect with hemorrhoids and constipation assigned by a December 2009 rating decision. It does not appear that a Statement of the Case has been issued on this issue. Accordingly, the Board is required to remand this issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The Veteran contended during her hearing testimony that her left foot disability, migraine headaches, lumbar spine disability and cervical spine disability had increased in severity since her most recent VA examination. Her most recent VA examination for her left foot disability was September 2009. The Board additionally observes that her most recent VA examination for her migraines was also in September 2009. The Veteran was scheduled for a VA examination of the cervical and lumbar spine in November 2012. However, the Veteran indicated that she was too intimidated to go through with the examination. The most recent VA examination for her lumbar spine and cervical spine disabilities is dated April 2011. The Board additionally observes that there is no specific medical indication as to whether the Veteran has radiculopathy due to her service-connected cervical spine and lumbar spine disabilities, which she also claimed during her hearing testimony. The Veteran is entitled to a new VA examination when there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). The evidence indicates that her disabilities have worsened in severity. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (the Veteran is competent to provide an opinion that his disability has worsened). The Board further notes that there is insufficient evidence of record subsequent to the VA examinations from which to assess the current severity of the Veteran's service-connected disabilities on appeal. Therefore, the Veteran should be provided additional VA examinations to determine the current severity of her service-connected disabilities on appeal, including the impact of the disorder on her employment. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United State Court of Appeals for Veterans Claims (Court) held that "a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation." The Court also stated that "when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." Id. at 454. Thus, on remand, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU and as noted previously, the examinations should determine if she is currently unemployable due to her service-connected conditions. Additionally, the Board notes that the Veteran's vocational rehabilitation folder has not been associated with the claims file. Such should be accomplished on remand. The Board observes that the Veteran contended during hearing testimony that she was diagnosed with sinusitis during January 2007 by a physician in Parkersburg, although she could not remember the name of the physician. There are no private treatment records indicating such treatment currently in the record. Although the Board notes there is an August 2007 private treatment record from Cornerstone indicating sinusitis and an October 2007 VA examination report indicating chronic sinusitis. Thus, the RO/AMC should attempt to request and associate the private records from January 2007 with the record. The Veteran's representative submitted a statement dated March 2013, after the Board hearing, that he had received 186 records of VA treatment dated to November 2012 and that he would submit them if necessary. The most recent VA treatment records in Virtual VA are through October 2011. Unfortunately, further adjudication on any claim cannot be completed until the outstanding VA treatment records are associated with the claims file. Thus, ongoing medical records dating from October 2011 to present should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Undertake all actions required by 38 C.F.R. § 19.26, including issuance of a Statement of the Case on the issue of evaluation for residuals of a rectocele repair status post posterior vaginal defect with hemorrhoids and constipation, so that the Veteran may have the opportunity to complete an appeal on this issue (if she so desires) by filing a timely substantive appeal. 2. Provide appropriate notice concerning the Veteran's claim for TDIU. Undertake any necessary development concerning this issue. 3. Request the Veteran to provide identifying information concerning any health care facilities where she received treatment or underwent evaluation for any of the disabilities at issue since service. Specifically request the Veteran to supply information about the private physician in Parkersburg who she contends diagnosed her with sinusitis in January 2007. Then undertake any additional indicated development to obtain any pertinent, outstanding evidence, to include contacting any identified health care facilities. The RO or the AMC should continue its efforts to obtain any pertinent, outstanding service medical records unless additional efforts would be futile, including any ongoing medical records from the Huntington VAMC system since October 2011. 4. Obtain the Veteran's vocational rehabilitation folder. 5. Schedule the Veteran for examination(s) to ascertain the current severity of her various disabilities on appeal, to include her left foot disability, migraines, lumbar disability and cervical spine disability. The examiner should be someone other than the Physician's Assistant who performed the November 2012 VA examination. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should specifically consider whether the Veteran has radiculopathy due to her cervical and/or lumbar spine disabilities. If necessary, schedule the Veteran for a VA nerves exam with appropriate testing, to include EMG testing. The examiner must also comment on the impact of her disability on her ability to obtain and retain employment. Then, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that her service-connected disabilities either alone or in the aggregate, render her unable to secure or follow a substantially gainful occupation. The examiner should set forth a complete rationale for all findings and conclusions. The RO should determine that all relevant information is provided necessary to rate the Veteran's disabilities. If all necessary information is not in the examination report, an addendum should be requested. 6. Readjudicate the claims on appeal. If the benefits sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ THOMAS J. DANNAHER 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).