Citation Nr: 1331317 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 06-16 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, evaluated as non-compensable prior to July 17, 2006; 10 percent disabling from July 17, 2006, to October 13, 2010; and 20 percent disabling beginning October 14, 2010. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from October 1969 to May 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March rating decision 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. A hearing was held in front of a Veterans Law Judge (VLJ) at the RO in June 2008. A transcript of the hearing has been associated with the claim file. In September 2008, June 2010 and April 2013, the Board remanded the claim for further development. The VLJ who presided over the Veteran's June 2008 hearing is no longer employed by the Board. In a letter dated in January 2013 the Veteran was informed of the VLJ's departure and was given the choice to have a new hearing. In a letter dated that same month, he stated he wanted to appear at a hearing in front of a VLJ at his local RO. In another January 2013 statement the day following the Veteran's letter, the Veteran's representative stated that the Veteran no longer wished to have a hearing. Accordingly, the hearing request is considered to be withdrawn. 38 C.F.R. § 20.704(e) (2012). The Board has reviewed the Veteran's Virtual VA file and has considered all of the relevant records contained therein. In the June 2010 and April 2013 remands, the Board noted that in a March 2010 statement, the Veteran reported he could not completely empty his bladder or he has the sensation he still needs to void. The Board found that the issue of entitlement to service connection for a neurologic bladder disorder had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ), and referred the issue to the AOJ for adjudication. A review of the claim file shows that the issue has not yet been adjudicated by the AOJ. Furthermore, the issues of entitlement to bilateral peripheral neuropathy of the upper extremities and diabetic retinopathy both as due to diabetes mellitus, have been raised by the record, but have not bee adjudicated by the AOJ. Therefore, the Board will REFER these issues to the AOJ for adjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks an increased disability rating for the service-connected peripheral neuropathy of the right lower extremity. After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claims on appeal must be remanded for further development. The Veteran was last afforded a VA examination in October 2010. In an informal hearing presentation of July 2013, the Veteran's representative stated that the Veteran's disability has worsened since the last VA examination and asked that a new examination be afforded prior to deciding the claim. VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse. Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Accordingly, the Board believes that a VA examination is needed to assess the severity of the Veteran's current peripheral neuropathy of the right lower extremity symptomatology. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (the Court) held that a claim for a TDIU due to service-connected disability or disabilities is part and parcel of an initial or increased rating claim when such claim is raised by the record. In the July 2013 informal hearing presentation, the Veteran's representative argued that the Veteran is now unemployed and appears to have attributed the unemployment, at least in part, to the service connected peripheral neuropathy of the right lower extremity. The representative requested that the claim be remanded for adjudication of TDIU. In compliance with Rice, the issue of entitlement to TDIU should be adjudicated by the AOJ. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a VCAA compliant duty-to-assist letter on the issue of entitlement to a TDIU, explaining how to substantiate the claim. 2. The Veteran should be afforded a VA examination to evaluate the severity of his service-connected peripheral neuropathy of the right lower extremity. The claims folder, including a copy of this Remand, must be made available to and reviewed by the examiner. The examiner should be given access to the Veteran's Virtual V file. The review of the files should be clearly documented in the examination report. All indicated studies should be performed. The examiner should determine the extent of the neurological impairment, and indicate whether there is complete or incomplete paralysis of the sciatic nerve. Impairment should be stated in terms of whether it is mild, moderate, moderately severe, or severe. If there is complete sciatic nerve paralysis, the examiner must note whether the foot dangles and drops, no active motion of the muscle below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. The examiner should also indicate the effect the service-connected disability, if any, on the Veteran's employment. A complete rationale should accompany all opinions. 3. The RO/AMC should then readjudicate the issues on appeal, to include TDIU. If the benefits sought on appeal are denied, in whole or in part, the Veteran should be issued an appropriate SSOC, and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ LANA K. JENG 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).