Citation Nr: 1340289 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-31 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to restoration of service connection for residuals of rib fracture. 2. Entitlement to service connection for peripheral neuropathy as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office (RO) in Huntington, West Virginia that, in pertinent part, severed service connection for residuals of rib fracture, and denied service connection for bilateral lower extremity peripheral neuropathy as secondary to type II diabetes mellitus, tinnitus, and a total rating based on unemployability due to service-connected disability (TDIU). The Veteran was afforded a personal hearing at the RO in August 2010 and in November 2012 before the undersigned Veterans Law Judge sitting at Huntington, West Virginia. During the latter hearing, the Veteran presented testimony pertaining to service connection for hernia as secondary to service-connected prostate cancer. He also appeared to raise the issue of an increased rating for posttraumatic stress disorder (PTSD). These matters are not properly before the Board for appellate consideration and are referred to the RO for appropriate consideration. Following review of the record, 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. [The Veteran's Virtual VA electronic claims file associated with the paper record has been reviewed in conjunction with the disposition of the issues on appeal.] REMAND At the outset, the Board observes that since the most recent statement of the case and supplemental statement of the case in August 2011, additional pertinent evidence consisting of extensive VA outpatient records dated between June 2011 and April 2013 became associated with Virtual VA. This evidence has not previously been considered in the adjudication of the claims. Neither the Veteran nor his representative has waived consideration of this evidence by the agency of original jurisdiction. The Board cannot consider this evidence in the first instance and must remand this matter to the RO for a supplemental statement of the case. See 38 C.F.R. §§ 19.38(b)(3), 20.1304(c) (2013). Service connection for a fractured rib was severed by rating action dated in November 2011. Correspondence dated in February 2012 was accepted as a notice of disagreement to this determination. However, the Veteran has not been provided a statement of the case in furtherance of his appeal. A remand is thus required for the RO to issue a statement of the case in this regard. See 38 C.F.R. § 19.30 (2013); Manlincon v. West, 12 Vet.App. 238, 240-41 (1999). The Board finds that audiology evaluations conducted in November 2010 and May 2011 are inadequate for service connection of tinnitus. The case must thus be remanded for an adequate audiology evaluation. Additionally, the Board observes that the Veteran is service connected for bilateral sensorineural hearing loss. The Board would point out that when considering service connection, all theories of entitlement, direct and secondary, must be considered. As such, the VA audiology evaluation requested above must address whether tinnitus might be secondary to or aggravated by service-connected bilateral hearing loss. See 38 C.F.R. § 3.310 (2013); See also Allen v. Brown, 7 Vet.App. 439 (1995). The Veteran asserts that he has peripheral neuropathy of the lower extremities secondary to service-connected diabetes mellitus. The appellant's private physician finds that he has peripheral neuropathy most likely due to diabetes mellitus. A VA examiner in April 2008 offered a negative opinion in this regard, but there are contrary findings in the clinical report. In view of the disparate findings in this regard, the appellant should be afforded a VA examination for peripheral neuropathy to resolve the inconsistencies. As to the claim for a total rating based on individual unemployability, the duty to assist requires that VA obtain an examination that includes an opinion as to what effect the Veteran's service-connected disabilities have on his ability to work. In this case, there has not been any overall assessment as to whether the appellant is unable to obtain or maintain gainful employment due to service-connected disabilities. As such, the Board finds that VA examination is also warranted in this regard. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran VCAA notice pertaining to the issue of entitlement to service connection for tinnitus as secondary to service-connected bilateral hearing loss. 2. Schedule the Veteran for a VA audiology examination, to include an audiometric evaluation. Detailed background and clinical history pertaining to noise exposure in service and thereafter should be obtained. The claims folder and access to Virtual VA must be provided to examiner for review prior to the evaluation. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or better) a) the appellant has tinnitus related to military service, or b) the appellant has tinnitus that is secondary to (proximately due to) or aggravated by (made chronically worse) service-connected bilateral hearing loss, or c) whether tinnitus is more likely of post service onset and unrelated to active duty or service-connected hearing loss. A complete rationale for the opinions must be provided. 3. Schedule the Veteran for a VA neurologic examination to ascertain the etiology of peripheral neuropathy of the lower extremities. The claims folder and access to Virtual VA must be made available to the examiner. All indicated tests and studies should be conducted and clinical findings must be reported in detail. The examiner should indicate whether there is objective evidence of lower extremity peripheral neuropathy and if found, provide an opinion as to whether it is at least as likely as not related to and/or is a complication of service-connected diabetes mellitus, type II. The examiner should set forth a complete explanation for the opinion and conclusion reached. 4. Schedule the Veteran for general medical and psychiatric examinations to evaluate the extent of his service-connected disorders. The claims folder and access to Virtual VA must be made available to the examiners. All indicated tests and studies should be conducted and clinical findings should be reported in detail. In addition to completing the disability benefits questionnaire pertaining to the disorders, the examiners are requested to provide an opinion addressing whether it is at least as likely as not that the Veteran's service-connected disabilities, either alone or in combination, render him unable to secure or follow a gainful occupation. A complete rationale must be provided for the opinions offered. 5. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If a benefit is not granted, provide the appellant and representative a supplemental statement of the case and afford 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). ______________________________________________ CHERYL L. MASON 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).