Citation Nr: 1340150 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-25 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating greater than 20 percent for left upper extremity radiculopathy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 26, 1975 to July 29, 1975; from February 1977 to October 1977; and from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that regard, the Board notes that the Veteran's March 2009 statement that the RO took as a claim for increased rating was received within one year of a December 2008 rating decision that granted entitlement to service connection for left upper extremity radiculopathy and assigned a 20 percent rating. In certain circumstances, such a statement could constitute a Notice of Disagreement (NOD); however, the March 2009 statement did not express disagreement with the December 2008 rating decision and, indeed, failed to mention the left upper extremity radiculopathy. The RO appears to have inferred a claim for increased rating based on the Veteran's statement that the underlying residuals of his service-connected cervical spine disability had worsened over the previous month. As such, the claim properly stems from the September 2010 rating decision as stated. See 38 C.F.R. § 20.201 (2013). The Veteran had a hearing before the undersigned Veterans Law Judge in February 2013. A transcript of that proceeding has been associated with the Veteran's Virtual VA file. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems to ensure a total review of the evidence. 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 The Veteran is seeking entitlement to an increased rating for his left upper extremity radiculopathy. The Board concludes that a remand for additional development is required prior to adjudication of the claim. VA has an obligation to associate all relevant records with the claims file of a veteran, and a heightened duty when it comes to obtaining records in the possession of another Federal Agency. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). During the Veteran's February 2013 Board hearing, the Veteran stated that he had applied for disability benefits from the Social Security Administration (SSA). The Veteran asserted that such disability application encompassed the claimed disorder currently on appeal. In May 2013, he submitted a statement from SSA indicating that benefits had been granted, effective from March 2013. Where there is actual notice to VA that the Veteran is receiving disability benefits from the SSA, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon where the identified records have a reasonable possibility of assisting in substantiation of the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). As such, a remand is required to afford the RO/AMC the opportunity to seek these records. During his February 2013 Board hearing, the Veteran testified credibly that his left upper extremity radiculopathy symptoms had increased in severity since the most recent July 2009 VA examination. The Veteran testified as to increased or continuing problems with involuntary movements, dropping objects, an inability to lift more than five pounds, swelling, and problems with activities of daily living, such as feeding dressing, and bathing. The Veteran specifically mentioned worsening involuntary movements and swelling in the left upper extremity since the last VA examination. The Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In light of the Veteran's contentions, the claim must be remanded in order to afford the Veteran a VA examination to determine the current severity of his left upper extremity radiculopathy. In addition, the Veteran testified to receiving on-going, regular treatment for his radiculopathy through VA facilities. The most recent VA treatment records in the claims file date to July 2012. Efforts must be made to obtain VA treatment records from that point to the present. Furthermore, the April 2009 VCAA notice letter did not reference the Veteran's claim for increase for left upper extremity radiculopathy. As such, a letter should be provided to the Veteran in compliance with the requirements of the VCAA. Finally, the Board notes that entitlement to TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran raised the issue of entitlement to TDIU during his February 2013 Board hearing and attributed his inability to work, in part, to his service-connected left upper extremity radiculopathy. The undersigned specifically stated to the Veteran that a claim for entitlement to TDIU would be included among the issues before the Board. As such, entitlement to TDIU is part of the claims for increased rating and amends the Veteran's increased rating claim to include entitlement to TDIU. The RO/AMC should request that the Veteran to complete an updated TDIU claim form and provide him with notice of how to substantiate the claim for an increased rating on the basis of TDIU. In that regard, the Board notes that a previous claim for entitlement to TDIU was denied in a March 2010 rating decision because the Veteran failed to complete an application for individual unemployability (VA Form 21-8940). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice of the information and evidence necessary to substantiate (a) a claim for increased rating for left upper extremity radiculopathy and (b) a claim for entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. 2. Request that the Veteran complete a TDIU claim form, to include VA Form 21-8940, and any other information necessary to adjudicate a claim for TDIU. 3. Obtain all outstanding VA clinical records from July 2012 to the present. 4. Request all available records concerning the Veteran from SSA. All records obtained or any response received should be associated with the claims file. If these records are unavailable, this should be noted and explained in the claims file. 5. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his left upper extremity radiculopathy. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims file must be provided to the examiner for review in conjunction with the examination, and the examiner should note that it has been reviewed. Attention is invited to the Veteran's credible February 2013 hearing testimony describing the effects and symptoms of his service-connected left upper extremity radiculopathy. The examiner should also be asked to detail the extent to which the Veteran's service-connected disabilities alone and in combination affect his occupational functioning. 6. After the above is complete, readjudicate the Veteran's claims. If one or more of the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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). _________________________________________________ MICHAEL A. PAPPAS 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).