Citation Nr: 1327386 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-04 207A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for a right foot disability. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for a right ankle disability. 5. Entitlement to service connection for a left hip disability. 6. Entitlement to service connection for a right hip disability. 7. Entitlement to service connection for a left leg disability. 8. Entitlement to service connection for a right leg disability. 9. Entitlement to service connection for a left knee disability. 10. Entitlement to service connection for a right knee disability. 11. Entitlement to service connection for a lung disability. 12. Entitlement to service connection for headaches, also claimed as migraines. 13. Entitlement to service connection for a heart disability, also claimed as a pulmonary heart condition. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1972. He appealed to the Board of Veterans' Appeals (Board/BVA) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, in support of his claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. Primarily because of that hearing testimony, the claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. Still additional issues have been raised by the record concerning whether there is new and material evidence to reopen previously denied claims for service connection for a skin disability, claimed variously as rashes, psoriasis, dermatitis, eczema, and shingles, and for service connection for a psychiatric disability, including a nervous condition or anxiety. The RO has not had opportunity, however, as the Agency of Original Jurisdiction (AOJ), to initially adjudicate these additional claims. Therefore, the Board does not have jurisdiction to consider them in the first instance, so is referring them to the RO for appropriate development and consideration. This is particularly necessary given the need to remand the several claims that are currently before the Board. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, the claims that are presently on appeal, it is necessary to ensure they are fully developed and receive all due consideration. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Inextricably-Intertwined Claims During his January 2013 videoconference hearing before the Board, the Veteran testified that all of the disabilities at issue in this appeal are attributable to his skin disability, so complications of it, which itself in turn is the result of his military service. So he believes all of the conditions claimed are service-connected disabilities, either directly or presumptively incurred during his service or, alternatively, secondarily related to his service since caused or aggravated by an underlying service-connected disability. In adjudicating these claims, the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. In his hearing testimony, the Veteran indicated his skin disability has been variously diagnosed and treated as rashes, dermatitis, eczema, and shingles. In addition, he has asserted in various other written statements of record that his skin disability also has been diagnosed as psoriasis. His claim of entitlement to service connection for a skin disorder was previously considered and denied in a June 2006 Board decision. He did not appeal that decision to the Court (CAVC), so it is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. There consequently has to be new and material evidence since that decision to reopen this claim for a skin disorder. 38 C.F.R. § 3.156. But since he apparently is attempting to reopen this claim for a skin disorder, and all of his other claims are derivative of that claim, his claims are inextricably intertwined. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims are "inextricably intertwined" when they are so closely tied together that a final decision on one cannot be rendered unless all are adjudicated concurrently). Because of this, the Board is precluded from going ahead and deciding these several derivative claims since they are predicated on favorable resolution of the underlying claim for a skin disorder. See, e.g., Holland v. Brown, 6 Vet. App. 443, 446 (1994) (a claim for a total disability rating based on individual unemployability (TDIU) predicated on a particular service-connected condition is inextricably intertwined with an increased-rating claim regarding the same condition). Claims of this sort should be considered concurrently to avoid piecemeal adjudication of claims with common parameters. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) and Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). Issuance of a Statement of the Case (SOC) With respect to the claim for service connection for a left knee disability, the Board sees that a timely NOD was filed in May 2009 concerning all of the issues addressed in the December 2008 rating decision, which included service connection for a left knee disability. The February 2010 SOC, however, did not include discussion of this claim of entitlement to service connection for left knee disability. And as there is a timely NOD but the RO has not issued in response an SOC concerning this claim, and since the Veteran resultantly has not had opportunity to also file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of this additional claim to the Board, the appropriate disposition is to remand, rather than merely refer, this claim. See Manlincon v. West, 12 Vet. App. 238 (1999). Outstanding VA Medical Treatment Records The Veteran apparently continues to receive treatment from VA, but the most recent VA medical records in his file are only dated up to May 2003, so is more recent records must be obtained and additionally considered. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2). Records, as here, generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of the claim, regardless of whether the records are actually physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the claims are REMANDED for the following additional development and consideration: 1. Obtain and associate with the claims file all pertinent medical treatment or other records the Veteran adequately identifies as needing to be obtained and considered, including especially all VA medical treatment records dated since May 2003. For all records identified that are not in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls for all that are. Also appropriately notify the Veteran if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Provide the Veteran an SOC addressing his claim of entitlement to service connection for a left knee disability, in accordance with 38 U.S.C.A. § 7105 (West 2002) and 38 C.F.R. § 19.30 (2012). To this end, the SOC must address all evidence of record submitted since submission of this claim, cite all applicable legal authority, and contain discussion of the reasons or bases for denying this claim. Apprise the Veteran that he still needs to submit a timely substantive appeal (VA Form 9 or equivalent statement) in response to this SOC to complete the steps necessary to perfect his appeal of this additional claim to the Board. 38 C.F.R. § 20.200. Only if he does should this additional claim be returned to the Board for further appellate consideration. 3. Then, after considering whether there is the required new and material evidence since the Board's June 2006 decision to allow reopening of the claim for service connection for a skin disorder, readjudicate the several derivative claims already on appeal - including for service connection for a left foot disability, right foot disability, left ankle disability, right ankle disability, right knee disability, left hip disability, right hip disability; left leg disability, right leg disability, lung disability, headaches, and heart disability. The readjudication of these claims must consider all alleged bases of entitlement (direct, presumptive and secondary) and all additional evidence of record, including all obtained as a result of this remand. If these several claims continued to be denied, send the Veteran a supplemental SOC (SSOC) concerning these claims and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning the claims the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).