Citation Nr: 1332586 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-13 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for bilateral testalgia. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1980 to December 1983, and from March 1986 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2009 and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In December 2009, the RO continued the assignment of a noncompensable evaluation for the Veteran's bilateral testalgia. In May 2011, the RO granted an increased 10 percent disability rating for bilateral testalgia, effective May 15, 2009, the date the claim for increased was received. The Veteran has expressed continued dissatisfaction with his current rating, and has made clear his desire to proceed with his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In July 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board finds that the Veteran's testimony during the July 2012 Travel Board hearing reasonably raises the issue of entitlement to a TDIU. In light of the Court of Appeals for Veterans Claims holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board considers the claim for a TDIU as part of the Veteran's pending claim for an increased rating for bilateral testalgia. Thus, the Board has rephrased the issues as listed on the title page to better reflect the claims on appeal. A review of the Veteran's Virtual VA electronic claims file shows that additional VA treatment records relevant to the claim were associated with the record in September 2013, following the issuance of the May 2011 statement of the case. 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 essentially contends that his service-connected bilateral testalgia disability meets the criteria for the assignment of at least a 30 percent disability rating as it requires continuous extensive medical management for symptoms of constant pain, increased urinary frequency, urinary incontinence, and renal dysfunction. A review of the record shows that the Veteran's bilateral testalgia disability was most recently evaluated during VA examination in June 2009, more than four years ago. In his notice of disagreement dated in February 2010, the Veteran indicated that the June 2009 VA examiner incorrectly indicated that his bilateral testalgia disability did not result in urinary incontinence. Also, a comparison of findings on VA examination in June 2009 with the Veteran's reported symptomatology during the July 2012 Travel Board hearing suggests that the claimed disability has worsened since the June 2009 examination. Under these circumstances, the Board finds that a contemporaneous VA examination is warranted for evaluation of the current nature and severity of the Veteran's bilateral testalgia disability. Although a new VA examination is not warranted based merely upon the passage of time (see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)), the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Also, as noted above, in the Board finds that the Veteran's testimony pertaining to his bilateral testalgia disability reasonably raises a claim of entitlement to a TDIU. A request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. As of the date of this REMAND, the Veteran's service-connected disabilities include bilateral testalgia (10 percent) and diarrhea with stomach pain (zero percent). Currently, the Veteran's combined disability rating is 10 percent from May 15, 2009. The claim of entitlement to a TDIU is inextricably intertwined with the claim for a higher evaluation for testalgia, and must be deferred pending readjudication of that claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). As the claim for a TDIU was inferred by the Board, the Veteran should be provided with VCAA notice as to the information and evidence necessary to substantiate his claim for a TDIU. The RO/AMC should take this opportunity to obtain and associate with the claims file all outstanding records pertaining to the claims on appeal, to specifically include VA treatment records, if any, from the Spokane VAMC dating from December 2009 to January 2010, and since September 2013. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice as to the information and evidence needed to substantiate his claim for a TDIU. 2. Undertake appropriate development to obtain documentation regarding the Veteran's educational and occupational history. 3. Invite the Veteran to present or request VA's assistance in obtaining any evidence, particularly medical evidence, which tends to show that he is unable to work solely due to service-connected disabilities. 4. Obtain all outstanding pertinent VA treatment records from the Spokane VA Medical Center, to include any records dating from December 2009 to January 2010 and since September 2013. All records and/or responses received should be associated with the claims file. 5. Thereafter, arrange for the Veteran to undergo an appropriate VA examination(s) to determine the severity of his bilateral testalgia and diarrhea with stomach pain disabilities and to determine the impact of service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The claims folders, to include any relevant records in Virtual VA, must be thoroughly reviewed by the examiner(s) in connection with the examination and notation to the effect that such review has occurred should be documented in the examination report. Any tests and studies deemed necessary by the examiner(s) should be conducted. All findings should be reported in detail. The examiner(s) should describe all pertinent symptomatology in regard to the testalgia and diarrhea with stomach pain disabilities and address the relevant rating criteria necessary for evaluation. The examiner(s) should also discuss any functional and occupational impairment caused by such disabilities, as well as any relevant functional and occupational impairment resulting from any of the Veteran's service-connected disabilities that is relevant to the question of employability. As to the Veteran's testalgia disability, the examiner must report he following: i. Whether it requires long-term drug therapy, 1-2 hospitalizations per year, and/or intermittent intensive management. ii. Whether it is productive of recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or whether it requires continuous intensive management. iii. If and only if it causes poor renal function, the examiner must determine whether the following manifestations are present: a. Albumin and casts with history of acute nephritis; or, hypertension with diastolic pressures predominantly less than 100; or systolic pressures predominantly less than 160; or if the Veteran does not require continuous medication for control. b. Albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema hypertension with diastolic pressures predominantly 100 or more; or systolic pressures predominantly 160 or more; or if the Veteran has a history of diastolic pressure of 100 or more and requires continuous medication for control. c. Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension with a diastolic pressure predominantly 120 or more. d. Persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. e. Requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. iv. The examiner must report the effects of the Veteran's bilateral testalgia s on his ordinary activity, including, but not limited to, the effects on his ability to perform the activities of daily living and any limitations on his occupation. Following review of the claims file, and appropriate examination and interview of the Veteran as to each additional service-connected disability, an opinion must be offered as to whether it is at least as likely as not (50 percent probability or better) that the Veteran's service-connected disabilities, either alone or in combination, render him unable to secure or follow a substantially gainful occupation for which his education and occupational experience would otherwise qualify him. The examiner should reconcile any opinion with all other clinical evidence of record and the Veteran's contentions. A complete rationale should be provided for any opinion expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. 6. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 7. After the development requested has been completed, the RO/AMC should review the examination report(s) to ensure that they are in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner(s) documented their consideration of Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 8. After the completion of any action deemed appropriate in addition to that requested above, the RO/AMC must readjudicate the claims of entitlement to an increased rating for bilateral testalgia and entitlement to a total disability evaluation based on individual unemployability due to service-connected disability. All applicable laws and regulations should be considered. If any benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and given the opportunity to respond. The Board notes that under the Rice decision the Veteran has already perfected an appeal to any denial of individual unemployability. 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). _________________________________________________ MICHAEL LANE 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).