Citation Nr: 1338676 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-09 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of injuries to the right ring and middle fingers. 2. Entitlement to a compensable disability rating for hemorrhoids. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service from July 1962 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 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 record shows that the Veteran receives regular VA care for his service connected disabilities. However, records of his VA treatment dated since August 2010 have not been physically or electronically associated with the claims folder on either Virtual VA or VBMS. Records of his VA treatment are constructively before VA. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In light of the state of the record, the Board finds that the claims must be remanded to associate those records, or an additional private treatment records relevant to the claims, and to afford him VA examinations to assess the current severity of his service-connected disabilities pertaining to his fingers and hemorrhoids. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The Veteran also seeks entitlement to a TDIU. His service-connected disabilities are currently residuals of right ring and middle finger injuries, rated at 20 percent disabling; hemorrhoids, rated at 0 percent disabling; degenerative disc disease of the lumbar spine, rated at 40 percent disabling; degenerative disc disease of the cervical spine, rated at 30 percent disabling; left knee chondromalacia, rated at 10 percent disabling; and, left lower radiculopathy, rated at 10 percent disabling. The Veteran has a total combined rating of 70 percent. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board thus must therefore determine whether entitlement to TDIU is warranted in this case on the basis of the Veteran's service-connected disabilities. In October 2010, the Veteran underwent a VA compensation examination. However, the VA examiner only offered an opinion as to whether the Veteran's service connected lumbar and cervical spine disabilities precluded him from obtaining and maintaining substantially gainful employment. However, as the evidence in the claims file indicates, the Veteran has stated his other service connected disabilities, specifically his ring and middle finger disabilities, cause pain and stiffness and have an impact on his ability to work. Further, as the Veteran's representative noted in the September 2013 Appellate Brief, during the September 2010 VA fingers examination, the examiner indicated the Veteran's complaints of his right ring and middle finger caused problems with employment and activities, like typing and writing. Therefore, the Board finds that a vocational opinion that considers the level of impairment caused by the Veteran's service-connected conditions, either alone or in the aggregate, is necessary to adjudicate this claim. Therefore, the claim is being remanded for that purpose. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the AOJ to obtain any additional evidence pertinent to the claims on appeal. After securing the necessary authorizations for release of this information, the AOJ should seek to obtain copies of all records referred to by the Veteran not already of record, specifically from any private physicians or any relevant VA treatment records dated since August 2010. The AOJ must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his fingers and hemorrhoids disabilities and the impact of his service-connected disabilities on his ability to work. He should be provided a reasonable amount of time to submit this lay evidence. 3. After the above development is completed, schedule the Veteran for appropriate VA examinations to assess the current nature and severity of the service-connected fingers and hemorrhoids disabilities. The claims file must be made available and reviewed by the examiners. All tests deemed necessary by the examiner shall be performed and all findings reported in detail. 4. Thereafter, afford the Veteran an appropriate VA examination, to be conducted, if possible, by a vocational specialist, to determine whether it is at least as likely as not that, without regard to the Veteran's age, impact of any nonservice-connected disabilities, his lumbar spine, cervical spine, fingers, hemorrhoids, left knee, and left lower extremity radiculopathy disabilities, 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. Thereafter, the Veteran's claims should be readjudicated. If any claim remains denied, the Veteran should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further appellate review. The Veteran 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) (2013).