Citation Nr: 1331603 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 09-26 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to increased evaluations for cancer of the larynx and its residuals. 2. Entitlement to an effective date earlier than July 23, 2007 for the grant of service connection for cancer of the larynx and its residuals. 3. Entitlement to an effective date earlier than October 31, 2008 for the grant of service connection for movement disorder characterized by muscle spasms of the neck. 4. Entitlement to an effective date earlier than October 31, 2008 for the grant of service connection for tinnitus. 5. Entitlement to an effective date earlier than October 31, 2008 for the grant of service connection for hearing loss. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from November 1967 to November 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from March 2008 and April 2009 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability is raised by the record. As discussed below, the record here raises the issue of entitlement to TDIU. Thus, under Rice, the Board has jurisdiction over the Veteran's TDIU claim, which for the purpose of clarity is listed as a separate issue on the title page. 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 seeks a higher rate of VA compensation for the residuals of his cancer of the larynx and its residuals. Currently he has a noncompensable (0 percent) rating for cancer of the larynx and the following separate ratings for residuals of cancer of the larynx: a 10 percent evaluation for movement disorder characterized by muscle spasms of the neck, a 10 percent evaluation for tinnitus, and a noncompensable evaluation for bilateral hearing loss. An April 2009 rating decision granted service connection for the three residuals of cancer of the larynx listed above. The Veteran's statement from his July 2009 VA Form 9 indicates that he intended his original claim of service connection for cancer of the larynx to encompass all of the residuals. Therefore, he is claiming an effective date earlier than October 31, 2008 for the grant of service connection for these residuals. Furthermore, the Veteran wrote that he is claiming an effective date earlier than July 23, 2007 for the grant of service connection for cancer of the larynx. To date, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to the claims of entitlement to earlier effective dates. Under the circumstances, the Board has no discretion and is obliged to remand the issues to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The April 2008 rating decision denied service connection for tension headaches, dry mouth, hypopharyngitis, and dysgeusia (lack of taste) because these are symptoms and not disabilities. Given that the Veteran is claiming that these symptoms are due to cancer of the larynx, which may include being as due to the treatment, his claim for an increased evaluation for cancer of the larynx should be considered with these symptoms. Since an SOC has not been issued for an increased evaluation for cancer of the larynx that includes these symptoms, the Board must remand this issue for issuance of an SOC. See Manlincon, 12 Vet. App. at 240-41. The Veteran's representative raised the issue of entitlement to service connection for scars associated with cancer of the larynx in a July 2010 statement. Since this issue arose during the appeal of the rating for cancer of the larynx and is claimed as a residual of this disability, it is considered part and parcel of the claim for benefits for the underlying disability. Furthermore, it does not appear that the symptomatology for scars would be duplicative of other disabilities for which service connection is in effect. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While the Board has jurisdiction over the issue as part and parcel of the Veteran's claim for an increased evaluation for cancer of the larynx, further development is necessary for an appropriate adjudication of this aspect of the claim. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice, 22 Vet. App. at 453-54. Here, the evidence as discussed above suggests that the Veteran is unemployed due, at least in part if not altogether, to symptoms of his service connected cancer of the larynx and its residuals. There is also evidence of record that his other service-connected disabilities, posttraumatic stress disorder and angina pectoris, affect the Veteran's ability to work. While entitlement to a TDIU was considered in the April 2009 rating decision, that decision did not include the residuals of cancer of the larynx that have not been rated separately. Accordingly, the issue of entitlement to a TDIU has been raised by the evidence of record in this case. While the Board has jurisdiction over this issue as part and parcel of the Veteran's disability rating claim, further development is necessary for an appropriate adjudication of the TDIU aspect of such claim. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013) that includes an explanation as to the information or evidence needed to establish a claim for a TDIU. 2. Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claims for an increased evaluation for cancer of the larynx and its residuals, for earlier effective dates for the grant of service connection for cancer of the larynx, movement disorder characterized by muscle spasms of the neck, tinnitus and hearing loss, and for entitlement to a TDIU. Document all unsuccessful attempts to obtain such records. 3. Notify the Veteran that he may submit statements from himself and others who have observed the Veteran describing their impressions of the impact of service-connected disabilities on his ability to work. 4. Schedule the Veteran for an appropriate VA examination to identify the nature, extent and severity of all manifestations of his service-connected residuals of cancer of the larynx. The claims folder should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner must identify all residuals of the service-connected cancer of the larynx and discuss the extent and severity of each manifestation. In doing so, the examiner must specifically state whether the disability is manifested by one or more scars, and if so, the number and size of the scars and state whether the scars are tender or painful. The examiner must also opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, to specifically include the combined impact of the manifestations of his cancer of the larynx, render him unable to secure or follow a substantially gainful occupation in light of his education, training and work experience. All findings and conclusions should be set forth in a legible report. 5. Then readjudicate the appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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). _________________________________________________ STEVEN D. REISS 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).