Citation Nr: 1338209 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-29 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for right inguinal hernia, to include as due to service-connected residuals of postoperative left inguinal hernia. 2. Entitlement to an increased rating for depressive disorder, currently rated 30 percent disabling. 3. Entitlement to an increased rating for asbestosis, currently rated 10 percent disabling. 4. Entitlement to an increased (compensable) rating for residuals of postoperative left inguinal hernia. 5. Entitlement to an increased rating for left arm pain with sensory changes in fingers and limitation of motion, currently rated 20 percent disabling. 6. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1961 to December 1964, and from November 1965 to February 1978. This matter comes to the Board of Veterans' Appeals (Board) from February 2008 and October 2008 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A February 2008 rating decision assigned a 30 percent disability rating to depressive disorder, effective March 21, 2006. An October 2008 rating decision denied increased ratings for asbestosis, residuals of postoperative left inguinal hernia, left arm pain with sensory changes in fingers and limitation of motion; and, denied entitlement to a TDIU. 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 most recent VA treatment records in the file are dated in March 2009, and were printed in June 2009. In subsequent statements, the Veteran has reported relevant additional treatment. The Veteran's most recent examinations to evaluate the severity of his disabilities took place in 2008. Since that time the Veteran and his wife have reported worsening symptoms, and some of the examinations do not contain all of the findings needed to rate the disabilities. New examinations for the service connected disabilities are therefore required. Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In statements from the Veteran, he has reported continuous treatment at the Beckley VA Medical Center (VAMC). Updated treatment records from the Beckley VAMC dated from March 15, 2009 should be associated with the claims folder or Virtual VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). TDIU There is plausible evidence that the Veteran's service connected disabilities cause unemployability. The Veteran's claim must be submitted to VA's Director, Compensation and Pensions Service for extraschedular consideration per § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). Right inguinal hernia In the October 2008 rating decision, the RO denied entitlement to service connection for right inguinal hernia. In a November 2008 notice of disagreement pertaining to other issues in appellate status, the Veteran also expressed disagreement with the denial of service connection for right inguinal hernia. The issue must be remanded for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims folder updated treatment records of the Veteran's treatment for the conditions at issue in this appeal since March 15, 2009. 2. AFTER all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected depressive disorder. The examiner should review the claims folder and note such review in the examination report or addendum to the report. The examiner should comment on the severity of the Veteran's depressive disorder, and specify the degree of occupational or social impairment due to his service-connected depressive disorder. Examination findings should be reported to allow for evaluation of depressive disorder under 38 C.F.R. § 4.130, Diagnostic Code 9434, and the examiner should specifically comment on any difficulty establishing and maintaining effective work and social relationships due to his depressive disorder. A GAF score and an analysis of its meaning should be provided. The examiner should offer an opinion as to whether due to his depressive disorder and his other service-connected disabilities he is precluded from all forms of substantially gainful employment for which he would otherwise be qualified. The examiner should provide reasons for any opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. Schedule the Veteran for a respiratory examination with a physician with appropriate expertise to determine the current extent of his asbestosis. The claims folders should be made available to and reviewed by the examiner, and the examiner should note such review. a) All indicated tests and studies should be performed. b) The examiner should report FVC percent predicted; DLCO (SB) predicted; and, maximum oxygen consumption in ml/kg/min (with cardiorespiratory limit). If any of the above cannot be measured, the examiner may provide an estimate of the value that would likely be obtained if the test were provided. c) The examiner should comment on whether he has cor pulmonale or pulmonary hypertension, and whether he requires outpatient oxygen therapy. The examiner should offer an opinion as to whether due to his asbestosis and his other service-connected disabilities he is precluded from all forms of substantially gainful employment for which he would otherwise be qualified. The examiner should provide reasons for any opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. Schedule the Veteran for a VA examination with a physician with appropriate expertise to determine the current severity of his service-connected left inguinal hernia. The claims folder should be made available to the examiner for review and all necessary testing should be conducted. All indicated studies and diagnostic testing should be performed. All symptoms and residuals associated with the left inguinal hernia, to include hernia surgeries, should be described in detail. The examiner should also state whether the left hernia is large or small, whether it is recurrent, well supported under ordinary conditions, readily reducible by truss or belt, and/or operable. It should be noted what symptoms, if any are attributable to any hernia scars and/or to nerve entrapment. In the case of the latter, the examiner should state whether it is at least as likely as not associated with the service-connected hernia disability. If so, the examiner should indicate whether such nerve entrapment involves any symptoms distinct from those caused by the hernia itself- and such symptoms, if any, should be expressly identified. The examiner should offer an opinion as to whether due to his left inguinal hernia and his other service-connected disabilities he is precluded from all forms of substantially gainful employment for which he would otherwise be qualified. The examiner should provide reasons for any opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 5. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left arm disability. The claims folder should be made available to the examiner for review and all necessary testing should be conducted. All indicated studies and diagnostic testing should be performed. The examiner should identify any neurological findings in the left upper extremity, and fully describe the extent and severity of those symptoms. The examiner should identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, or severe in nature). The examiner should also identify any muscular atrophy. Range of motion testing should be accomplished and the examiner should report, in degrees, the point at which pain is demonstrated. To the extent possible the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should offer an opinion as to whether due to his left arm disability and his other service-connected disabilities he is precluded from all forms of substantially gainful employment for which he would otherwise be qualified. The examiner should provide reasons for any opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 6. If there was any period since February 2007 when the Veteran was unemployed and did not meet the percentage requirements for TDIU, refer the claim to VA's Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 4.16(b) (2013). 7. Issue a statement of the case with regard to the issue of entitlement to service connection for right inguinal hernia. This issue should not be certified to the Board, unless the Veteran submits a timely substantive appeal. 8. If any issue on appeal is not granted in full, issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise in order. The Veteran and his representative have 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). _________________________________________________ Mark D. Hindin 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).