Citation Nr: 1339771 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 08-31 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for irritable bowel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to October 1969, and from July 1996 to December 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board observes that while both of the current appellate claims were addressed by this rating decision, the Veteran perfected his appeal as to both issues at different times. For example, a Statement of the Case (SOC) was promulgated on the TDIU issue in June 2009, and the Veteran's Substantive Appeal was received in July 2009. A SOC on the irritable bowel syndrome claim was promulgated in April 2013, and a Substantive Appeal was received in May 2013. In December 2011, the Board issued a decision denying the Veteran's TDIU claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By a March 2013 memorandum decision, the Court vacated the Board's December 2011 decision to the extent it denied a TDIU, and remanded the case for compliance with the instructions of the memorandum decision. For the reasons discussed in greater detail below, 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. As an additional matter, the Board observes that the December 2011 decision also determined the Veteran was entitled to a higher rating of 30 percent for his service-connected residuals of non-Hodgkin's lymphoma. However, the record does not reflect the Veteran appealed that portion of the Board's decision to the Court, nor was it addressed in the March 2013 memorandum decision. Therefore, that issue is no longer before the Board for appellate consideration. See 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). REMAND The Court, in the March 2013 memorandum decision, found, in pertinent part, that a December 2010 VA general medical examination was inadequate for resolution of the Veteran's TDIU claim. Accordingly, a new examination is necessary. With respect to the irritable bowel syndrome claim, the Board notes that the Veteran did not request a hearing in conjunction with his TDIU claim. However, as part of the May 2013 Substantive Appeal for his irritable bowel syndrome claim, the Veteran checked the box to indicate he wanted a Board hearing at the local RO (i.e., a Travel Board hearing). Further, a June 2013 letter from the RO to the Veteran noted he had been placed on the list of people who desired to appear for a Travel Board hearing. Nothing in the record available for the Board's review reflects the Veteran has withdrawn or changed his request for a Travel Board hearing, or that such a hearing has since been conducted. Moreover, Travel Board hearings are scheduled by the RO. See 38 C.F.R. §§ 20.700, 20.704(a). Therefore, a remand is also required regarding the Veteran's request for a Travel Board hearing in conjunction with this case. The Board further notes that resolution of the irritable bowel syndrome claim may affect the Veteran's entitlement to a TDIU. As such, these issues are inextricably intertwined. Therefore, the effect the resolution of the irritable bowel syndrome claim should be taken into account in adjudicating the TDIU claim. Under the circumstances described above, the case is REMANDED for the following action: 1. The AMC/RO should take appropriate steps in order to schedule the Veteran for a personal hearing at the RO with a Veterans Law Judge of the Board in accordance with his request. The Veteran should be notified in writing of the date, time and location of the hearing. 2. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his hearing loss, residuals of non-Hodgkin's lymphoma, diabetes mellitus, tinnitus, peripheral neuropathy of the lower extremities, hemorrhoids, cyst removal residuals, and irritable bowel syndrome since December 2010. After securing any necessary release, the AMC/RO should obtain those records not yet associated with the file. 3. The AMC/RO should notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his service-connected disabilities and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist, to evaluate the issue of entitlement to a TDIU. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Following evaluation of the Veteran, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. [The Veteran's service connected disabilities are the following: Bilateral hearing loss Non-Hodgkin's Lymphoma Residuals Diabetes Mellitus with Peripheral Neuropathy of Both Upper and Lower Extremities Tinnitus Hemorrhoids Residuals of a Cyst Removal from the Neck] The examiner also is requested to indicate whether his/her opinion concerning the Veteran's employability would change if Irritable Bowel Syndrome was service connected. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 5. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained since the appellate claims were last adjudicated below, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant 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). _________________________________________________ MICHAEL E. KILCOYNE 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).