Citation Nr: 1326712 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-17 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for peripheral neuropathy of the right upper extremity, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for peripheral neuropathy of the left upper extremity, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert v. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to August 1969. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2006 rating decision of the VA Regional Office in St. Louis, Missouri that denied increased ratings for peripheral neuropathy of the right and left upper extremities. The case was remanded for further development by Board decision in September 2010. By decision dated in February 2012, the Board denied evaluations in excess of 10 percent for right and left upper extremity peripheral neuropathy. The appellant appealed the denials of the claims to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Joint Motion for Partial Remand, the parties requested that the Court vacate that portion of the Board's decision that denied the claims of increased ratings for right and left upper extremity peripheral neuropathy. In a September 2012 Order, the Court vacated the Board's February 2012 decision that denied entitlement to increased ratings for peripheral neuropathy of the right and left upper extremity, and remanded the matters for further consideration and instructions consistent with the September 2012 Joint Motion for Partial Remand. Following review of the record, 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 asserts that the symptoms associated with his service-connected right and left upper extremity peripheral neuropathy are more severely disabling than reflected by the currently assigned disability evaluation of 10 percent and warrant higher ratings. Review of the record discloses that the appellant has received VA outpatient treatment over the years from VA St. Louis for a variety of complaints and disorders. The Board observes that the most recent VA outpatient records date through October 2010. Therefore, almost three years of VA outpatient records may be outstanding, some of which may provide information relative to the status of the service-connected bilateral upper extremity peripheral neuropathy. As VA has notice of the potential existence of additional records, they must be retrieved and associated with the other evidence on file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, VA outpatient records dating from November 2010 through the present must be requested and associated with the claims folder. Additionally, the record reflects that the Veteran was most recently afforded a VA peripheral nerves examination for compensation and pension purposes in October 2010. He submitted an affidavit dated in February 2013 suggesting that symptoms associated with peripheral neuropathy are significantly worse. Given the Veteran's contentions that his symptoms warrant a higher disability rating and are worse, the possibility that there may be additional pertinent VA records, and the fact that the Veteran has not been examined by VA for almost three years, a new examination is in order. The Court has also held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. 38 C.F.R. § 3.326 (2012); see Olsen v. Principi, 3 Vet.App. 480, 482, citing Proscelle v. Derwinski, 2. Vet.App. 629, 632 (1992). With regard to the claim for a TDIU, the Board notes that entitlement to a TDIU was previously denied and not appealed by the Veteran. However, he has since again raised a claim of entitlement to a TDIU in May 2013 and additional evidence with regard to this claim has been added to the record since that time. The Veteran asserts that he is unable to work due to his service-connected disabilities. Given the Veteran's assertions made in connection with the claims for higher rating on appeal, the Board finds the claim for a TDIU is essentially a component of the claims for higher ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that where a veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU). The Board notes, however, that the RO has not considered the Veteran's entitlement to a TDIU since he filed this most recent claim. Thus, the RO should adjudicate this matter in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following actions: 1. Develop a claim for entitlement to a TDIU. In so doing, the RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 2. Request all VA outpatient records dating from November 2010 to the present from the VA St. Louis, Missouri VA facility and associate with the claims folder. 3. After the above action is completed, schedule the appellant for an examination to determine the severity of his service-connected right and left upper extremity peripheral neuropathy and all associated symptoms. The examiner should be made aware that the appellant is also service connected for left upper extremity weakness as a residual of cerebrovascular accident. Symptoms associated with left upper extremity weakness as a residual of cerebrovascular accident and those related to left upper extremity peripheral neuropathy should be separated, if possible. 3. Readjudicate the issues on appeal. The appellant 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). 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). _________________________________________________ REBECCA FEINBERG Acting 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).