Citation Nr: 1330076 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-36 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected hepatitis C. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected hepatitis C. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from April 1978 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a lumbar spine disorder, denied service connection for an acquired psychiatric disorder, and denied entitlement to TDIU. In March 2012, the Board remanded this case for further development. The case has returned to the Board for appellate review. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Remand is required pursuant to 38 C.F.R. § 20.1304 (2012), which provides in pertinent part that: An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans' Appeals, whichever comes first, during which they may submit ... additional evidence[.] [38 C.F.R. § 20.1304(a).] Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section...must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. [38 C.F.R. § 20.1304(c).] In this case, the Veteran's attorney filed an Informal Brief with the Board on March 14, 2013, within 90 days of the January 8, 2013 VA letter notifying the Veteran and his attorney that the appellate record had been transferred to the Board. In the Brief, the attorney cited 38 C.F.R. § 20.1304 and correctly stated that the Veteran "was not provided the opportunity to present this argument to the RO prior to the file being returned to the BVA." As the provisions of 38 C.F.R. § 20.1304 are met, the Board hereby remands the Veteran's claims to the RO for consideration of his attorney's March 2013 Brief in the first instance. Additionally, with respect to the issue of entitlement to a TDIU, the Board observes that the Veteran is only in receipt of service connection for one disability, hepatitis C, which is rated at 40 percent disabling. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). In remanding the TDIU claim, the Board observes that the November 2012 VA examiner stated that "Although [the Veteran] reports fatigue, malaise and arthralgia, these symptoms are not exclusive to hepatitis C." However, the examiner does not specifically attribute the Veteran's reported fatigue, malaise and arthralgia to a nonservice-connected etiology. An additional opinion is necessary. The Board notes that the Virtual VA file contains VA treatment records dating through October 2012. As these records contain relevant information concerning the Veteran's general complaints, weight, and nutritional status, it is likely that continuing treatment records would also include such information. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical 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. Obtain updated VA treatment records from the North Florida/Southern Georgia VA healthcare system dating since October 2012. 2. After the above has been completed to the extent possible, send the Veteran's claims file to a VA gastroenterologist for review and to obtain an opinion as to whether the Veteran's service-connected hepatitis C, alone, renders him unable to obtain or maintain gainful employment. If the specialist determines that a new examination is deemed necessary to respond to the question presented, one should be scheduled. Following review of the claims file (and any examination deemed necessary) the specialist should render an opinion as to whether the service-connected hepatitis C, alone, renders the Veteran unable to obtain or maintain gainful employment, without regard to nonservice-connected conditions or his age. If the specialist finds that the Veteran's complaints of fatigue, malaise, and arthralgia are not related to his hepatitis C, the examiner should specify the condition(s) causing such symptoms. The specialist should explain the reasoning for the opinions provided. 3. Review the March 2013 Informal Brief provided by the Veteran's attorney in the first instance. 4. Thereafter, after conducting any additional development deemed necessary, the claims should be readjudicated, to include considering whether referral of the TDIU claim for extraschedular consideration is warranted. If the claims remain denied, issue a supplemental statement of the case, and afford the Veteran and his attorney an appropriate period to respond before the case is returned to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). _________________________________________________ K. A. BANFIELD 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).