Citation Nr: 1338430 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-20 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for asthma. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 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 In a July 2011 statement, the Veteran reported that he has been on a "breathing machine" for his asthma for the last two years; however, the medical records relating to the Veteran's asthma do not reflect use of a "breathing machine." Therefore, it appears that the Veteran's disability may have increased in severity since last VA examination for asthma in 2008. When a Veteran claims that his condition has worsened since the most recent examination, VA must provide a new examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, a new VA examination should be scheduled for the Veteran. Additionally, in his substantive appeal, the Veteran claims that he cannot work because of his service-connected asthma, and the 2008 VA examiner noted on the examination report that "the effect of the condition on the Veteran's usual occupation is unable to perform." The Board finds a claim of entitlement to total disability individual unemployability (TDIU) has been raised and accordingly takes. jurisdiction over the issue of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Appropriate notice for the TDIU claim is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Accordingly, the case is REMANDED for the following action: 1. Review the claims folder and ensure that all notification and development actions required by the Veterans Claims Assistance Act of 2000 (VCAA) are fully complied with and satisfied with respect to the claim for TDIU. 2. Ask the Veteran to identify all medical care providers who have treated him for his service connected asthma since June 2008. After securing any necessary release(s), obtain any records that are not already associated with the claims folder. If records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow him the opportunity to obtain the records. 3. After obtaining any additional medical records, the Veteran should be afforded an examination to address the current severity of his asthma. The examiner should conduct all indicated tests and studies, to include pulmonary function tests. The claims folder should be made available to the examiner for review before the examination. The examiner must also determine whether the Veteran's service-connected disability alone precludes him from obtaining or retaining substantially gainful employment, without regard to his age or nonservice connected disabilities. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Ensure that the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal, including. adjudication of the TDIU issue. If the Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), TDIU must also be considered on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), and, if appropriate, referred for consideration by the Under Secretary Benefits or by the Director of Compensation and Pension Services. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. N. HYLAND 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).