Citation Nr: 1336747 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-48 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating for residuals of a gunshot wound to the left shoulder, currently rated as 30 percent disabling. 2. Entitlement to an initial compensable (increased) rating for residuals of a gunshot wound to the left elbow. 3. Entitlement to service connection for a bilateral knee disorder, to include as secondary to service-connected residuals of gunshot wound to the right heel. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to December 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Louis, Missouri, and Boston, Massachusetts. The VA RO in Boston, Massachusetts, currently has jurisdiction over the Veteran's claims file. The Board's review has included both paper and electronic records. In August 2013, the Board remanded the claims for further development. The RO granted service connection for residuals of a shrapnel wound in the left elbow. The Board notes that the Veteran suffered a gunshot wound in service as opposed to shrapnel wound. Therefore, the Board is reclassifying the left elbow disability as residuals of a gunshot wound to the left elbow. Social Security Administration records reflect that the Veteran was granted disability benefits in part due to his left shoulder disorder. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the claim for TDIU is a component of the claim for higher ratings for residuals of gunshot wounds to the left shoulder and left elbow. Therefore, the Board has taken jurisdiction of this issue and it has been listed on the title page accordingly Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 At the time of the last remand, the Veteran's whereabouts were unknown. VA treatment records reflect that he is currently staying at a motel in Weymouth, Massachusetts. A printout of his current address from VACOLS is towards the top of volume 5 of the appellant's claims file. An August 2008 VA treating doctor opined that it was as at least as likely as not that the bilateral knee disorder was referable to the service-connected residuals of gunshot wound to the right heel. That doctor did not provide a basis for his opinion. The last examination regarding the service-connected left shoulder and elbow disabilities was conducted in December 2008. 2009 VA treatment records suggest that his service-connected left shoulder disability may have worsened and may be causing neurological impairment in the left upper extremity. In light of availability of the Veteran, another VA examination is necessary. The two November 2009 statements of the case and the September 2013 supplemental statement of the case were all returned as undeliverable. In light of the knowledge of the Veteran's current whereabouts, the AMC should re-mail the two November 2009 statements of the case and the September 2013 supplemental statement of the case to him at his current address. The Veteran has not been provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to a total disability rating based on individual unemployability, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran a formal application for his claim of entitlement to a total disability rating based on individual unemployability. The AMC should provide the Veteran notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The AMC should undertake any additional development in response to a completed formal application. 2. Obtain all VA treatment records from the Boston VA Medical Center from June 2013 to the present. 3. Re-mail the two November 2009 statements of the case and the September 2013 supplemental statement of the case to him at his current address, a motel in Weymouth, Massachusetts. 4. Thereafter, the Veteran must be afforded a VA examination to determine the nature and extent of his residuals of gunshot wounds to the left shoulder and left elbow and his bilateral knee disorder and to determine if he is unemployable due to service-connected disabilities. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to residuals of gunshot wounds to the left shoulder and left elbow, to include any neurological disability from these two disabilities; residuals of a gunshot wound to the right heel; and his bilateral knee disorder. For the bilateral knee disorder, the examiner must opine on whether there is a 50 percent or better probability the bilateral knee disorder was caused or aggravated by the service-connected residuals of a gunshot wound to the right heel. The examiner must opine whether there is a 50 percent or better probability that the Veteran is unable to obtain and retain substantially gainful employment based on the service-connected residuals of gunshot wounds to the left shoulder, the left elbow, and the right heel, and any additional disabilities for which service connection is established following the date of this remand. A complete rationale for any opinion offered must be provided. 5. After accomplishing any additional development deemed appropriate, readjudicate the claims on appeal. If service connection is granted for a knee disability and entitlement to TDIU is denied, the AMC should submit the claims folder to the examiner for an addendum addressing whether there is a 50 percent or better probability that the Veteran is unable to obtain and retain substantially gainful employment based on the service-connected residuals of gunshot wounds to the left shoulder, the left elbow, and the right heel; any knee disorder for which service connection has been established; and any additional disabilities for which service connection is established following the date of this remand. If the benefits sought in connection with the claims remain denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. 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).