Citation Nr: 1328685 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 06-31 776A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an autoimmune thyroid condition. 2. Entitlement to service connection for scleroderma. 3. Entitlement to an initial rating in excess of 10 percent for service-connected left ankle arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active duty service from September 1982 to May 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in December 2005. A statement of the case was issued in August 2006, and a substantive appeal was received in October 2006. On a form received in October 2007, the Veteran marked the appropriate line to indicate that she would appear at a hearing before the Board at the RO. A hearing before the Board was scheduled for March 2010. However, the Veteran failed to appear. The Board remanded the appealed claims in August 2010 for additional development, and they now return to the Board for further review. In October 2010, the Veteran stated that she has been unemployed since 2001 because of multiple problems, to include the ankle. The United States Court of Appeals for Veterans Claims (Court) has clarified that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). In Locklear v. Shinseki, however, the Court distinguished the instant case from Rice and recognized VA can specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU. 24 Vet. App. 311, 315 (2011). The Court in Locklear held that "(b)ifurcation of a claim generally is within the Secretary's discretion." Id. Here, the record reflects that during the course of the current appeal, entitlement to TDIU was denied in a May 2013 rating decision. The Veteran was mailed notification of the denial. Given the foregoing, the Board concludes that the TDIU rating claim was separately adjudicated and not perfected for appellate review. Accordingly, the Board does not have jurisdiction over the claim and need not refer or remand the matter. 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 With regard to the thyroid claim, the Veteran underwent a VA examination in March 2007 and was diagnosed with hashimotos thyroiditis with hypothyroidism. The examiner noted that there was no evidence that the Veteran's current thyroid condition started in the military service. With regard to the scleroderma claim, the Veteran underwent a VA examination in November 2007. The examiner diagnosed scleroderma. The examiner noted that, with secondary esophageal dysmotility and Raynaud's phenomena of the fingers, this is a permanent condition and is affecting the Veteran's ability to sustain regular work. The Board finds that the VA examinations and reports are inadequate, given the failure by the examiners to determine the etiology and provide adequate rationale of any thyroid and scleroderma disabilities. The Board finds that the Veteran should be scheduled for additional VA examinations with regard to the thyroid and scleroderma issues. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). With regard to the left ankle claim, when the Veteran was afforded a VA examination in February 2009, the VA examiner failed to adequately address functional limitations associated with the left ankle disorder including as associated with DeLuca factors of functional loss due to pain on undertaking motion, fatigue, weakness and/or incoordination. 38 C.F.R. §§ 4.40 and 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the Veteran was provided another VA examination in October 2010, however, this examination only addressed the spine. Thus, an additional left ankle VA examination is therefore required. Finally, records of any VA treatment the Veteran may have received for the disabilities on appeal are constructively of record, are likely to contain pertinent information, and must be secured. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's Palo Alto VA medical center outpatient treatment records dated from April 2009 to the present. Incorporate the records into the Veteran's claims file or Virtual VA file. If no records are available, documentation stating this should be incorporated into the claims file. 2. Thereafter, afford the Veteran an appropriate VA examination to determine the nature and etiology of any current thyroid disability. The claims file and any Virtual VA or other digital records should be made available to the examiner in connection with the examination. The examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a thyroid disability is causally related to service. To answer this question, relevant past medical history should be noted, and clinical findings as well as the Veteran's own statements, to the extent found credible, should be considered. A complete rationale should be given for any opinion provided. 3. Thereafter, afford the Veteran a VA examination to determine the nature and etiology of any current scleroderma disability. The claims file and any Virtual VA or other digital records should be made available to the examiner in connection with the examination. The examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a scleroderma disability is causally related to service. To answer this question, relevant past medical history should be noted, and clinical findings as well as the Veteran's own statements, to the extent found credible, should be considered. A complete rationale should be given for any opinion provided. 4. Thereafter, afford the Veteran a VA examination to address the nature and severity of current left ankle arthritis. The claims file and any Virtual VA or other digital records should be made available to the examiner in connection with the examination. Any necessary and non-invasive tests and studies should be conducted. Relevant past medical history should be noted, and clinical findings as well as the Veteran's own statements should be considered. The examiner should appropriately address standardized questions pertaining to left ankle disability, and provide a complete explanation for all findings and conclusions. a. The examiner must address ranges of motion, reported episodes of exacerbation or flares of increased severity of disability, and functional limitations associated with the disorder including as associated with DeLuca factors of functional loss due to pain on undertaking motion, fatigue, weakness and/or incoordination. 38 C.F.R. §§ 4.40 and 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner is hereby advised that the current examination is necessitated by a failure of the February 2009 VA examiner to adequately address these DeLuca factors. b. The VA examiner should note the Veteran's history of left ankle disability, the prior VA examinations for compensation purposes in March 2007 and February 2009 and prior and subsequent treatments, the Veteran's own contentions and their credibility or lack of credibility (if so indicated), other lay statements and their credibility or lack of credibility (if so indicated), and any other relevant evidence within the claims file. 5. After completion of the above, the RO should then review the expanded record and readjudicate the issues on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ DAN SCHECHTER 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).