Citation Nr: 1338865 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-37 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable rating for service-connected asthma prior to December 18, 2008, and a rating in excess of 10 percent after that date. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for dextroscoliosis, claimed as arthritis and residual of back injury. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from October 1979 to October 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the Veteran's claims for service connection for hypertension and dextroscoliosis, claimed as arthritis and residual of back injury, and entitlement to a compensable rating for service-connected asthma. An August 2010 rating decision increased the rating for asthma to 10 percent, effective from December 18, 2008. The Veteran has continued his appeal as to all of these claims. In April 2012, the Veteran gave testimony before the undersigned Veterans Law Judge in support of his claims. A complete transcript is of record. The Board further notes that since the Veteran is claiming that he is unable to work due to symptoms associated with his service-connected asthma, the Board finds that he has raised an implied claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 Turning first to the Veteran's claim for an increased rating for asthma, the record reflects that the last VA examination that was performed in connection with this claim occurred in November 2007, at a time when the Veteran was not yet even service connected for this disorder. Moreover, while he has not specifically stated that his condition has worsened since that time, the RO increased the rating for this disorder based on VA treatment records that indicated he was prescribed an albuterol inhaler on December 18, 2008 (thus, justifying an increased rating to 10 percent, effective that date), and the Veteran subsequently testified before the Board in April 2012 that he was not working because of his asthma, noting that he had been fired from three to four jobs due to excessive sick leave associated with this disorder and that it limited the distance he could walk or run (transcript (T.) at pp. 11-12). Consequently, the Board finds that notwithstanding the RO's grant of a 10 percent rating since December 18, 2008, the Veteran's testimony with respect to the impact of this disability on his employment and the time that has transpired since his last VA examination warrants the remand of this issue for a new VA examination to assess the current severity of this service-connected disability and its impact on his employment. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). With respect to the Veteran's claims for service connection for a back disorder and hypertension, while service treatment records do not reflect any diastolic blood pressure readings of 90 or greater or treatment for a back injury during service (an entry from April 1983 notes the Veteran's fall from a cliff but does not mention injury to the back), at his April 2012 Board hearing, the Veteran testified that he received treatment to his back following the fall on the island of Molokai in the Hawaiian Islands where he was stationed from March 1980 to October 1983 (T. at pp. 21-24). When asked whether he received treatment following the incident, he denied receiving treatment at the naval air station, but did state that he recalled going to Tripler Army Medical Center in Hawaii, at which time they X-rayed his back (T. at p. 17). However, there is no indication in the record that any effort was made to obtain these records from Tripler and the National Personnel Records Center (NPRC) where older Tripler records have been retired. Therefore, the Board finds that the issue of entitlement to service connection for dextroscoliosis, claimed as arthritis and residual of back injury, should be remanded so that an appropriate effort can be made to obtain these records. As such records may also contain evidence relevant to his claim for service connection for hypertension, the Board will defer its consideration of that issue pending the completion of this requested development. Finally, the Veteran has indicated that he is in receipt of Social Security Administration (SSA) disability benefits primarily related to his back problems, however, the claims file does not contain all of the records relating to his SSA disability claim. Therefore, a request should also be made for all of the records associated with the Veteran's claim for SSA disability benefits, which were apparently awarded in November 2007. Accordingly, the case is REMANDED for the following actions: 1. Contact the NPRC and Tripler Army Medical Center and request all records regarding the treatment the Veteran received at Tripler for injuries sustained when he fell off a cliff during service in April 1983. All efforts to fulfill this development should be documented in the claims file, and if the search for these records is negative, that should be noted and the Veteran must be informed in writing. 2. Request, directly from the SSA, complete copies of any determination on the Veteran's claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All efforts to fulfill this development should be documented in the claims file, and if the search for these records is negative, that should be noted and the Veteran must be informed in writing. 3. Schedule the Veteran for an appropriate examination to determine the current nature and severity of his service-connected asthma. The claims folder must be made available to and reviewed by the VA examiner in conjunction with the examination, and the VA examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should also comment on whether this disorder prevents the Veteran from securing and following a substantially gainful occupation. 4. After completion of the development requested above, to include etiological examinations based on any records received in response to items 1 and 2 or otherwise, readjudicate all of the claims on appeal. If any decision is adverse to the Veteran issue a supplemental statement of the case, allow the appropriate time for response, and thereafter return the claims to the Board for further appellate review. The appellant 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. 2013). _________________________________________________ F. JUDGE FLOWERS 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).