Citation Nr: 1342825 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-23 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to an increased rating in excess of 10 percent for headaches due to undiagnosed illness. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1959 to March 1962 and from November 1990 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the Virtual VA claims file does not reveal any additional evidence pertinent to the present appeal. In February 2009, the Veteran submitted a Freedom of Information Act (FOIA) or Privacy Act request for his VA claims file and all VA and contract examiner clinical laboratory tests, x-rays, and examination results and reports. The record does not contain any correspondence reflecting that the request was completed; however, subsequent correspondence submitted by the Veteran in May 2009, October 2009, and June 2010 does not indicate that the Veteran did not receive a response to his request. In fact, the Veteran, in his correspondence, discusses VA laboratory test results and his September 2008 VA examination report results, so the Board finds that the Veteran's FOIA request has been completed and the request does not require further action. In May 2009, the Veteran submitted a statement revoking representation by all Veterans Service Organizations (VSO) and proceeding as a pro se (unrepresented) claimant. The Veteran has not appointed another representative (either VSO or attorney) to assist him in his claim. Therefore, the Board is proceeding with the Veteran's claim as a pro se claim. 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 Veteran's last VA examination was in September 2008, over 4 years ago and he has asserted that his headache disorder is worse than shown on that examination and continues to worsen. As the Veteran contends that his headaches have increased since then in frequency and intensity and given the age of the examination, it likely does not accurately portray the current state of the Veteran's disability picture. The Board finds that a more contemporaneous VA examination report is needed in order to assess the current severity of the Veteran's service-connected headaches due to undiagnosed illness, including whether this condition, alone or in conjunction with his other service-connected disability, renders him substantially unemployable. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board also finds that entitlement to a TDIU has been raised by the evidence of the record. See June 2010 VA Form 9 (Substantive Appeal). The Veteran stated that he was entitled to a 100 percent disability rating under 38 C.F.R. § 3.340, which allows for the VA to assign a total disability rating "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §3.340 (2013). Since entitlement to a TDIU is part of the Veteran's increased rating claim, the proper remedy here is for the Board to remand, rather than refer, the TDIU component of the increased rating issue to the agency of original jurisdiction (AOJ) for proper development and adjudication. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also 38 C.F.R. § 4.16 (2013). This TDIU claim needs to be further developed before being adjudicated. See VAOGCPREC 6-96 (Aug. 16, 1996); VAOGCPREC 12-2001 (July 6, 2001). The Veteran should be provided with notice of any information or lay or medical evidence necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Finally, the claims file reflects that pertinent VA records are outstanding. In particular, the April 2010 statement of the case (SOC) states that the RO reviewed VA treatment records from the South Texas Healthcare System. A note in the claims file states that those records were dated from September 15, 1999 to August 27, 2009, however, those records are not associated with the paper claims file or virtual record. On remand, all outstanding VA records must be secured and associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). The RO/AMC must also afford the Veteran an opportunity to identify any relevant records from private treatment sources. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send a VCAA notice letter notifying the Veteran of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim on appeal. This notice must indicate what information or evidence the Veteran should provide, and of what information or evidence VA will attempt to obtain on his behalf. Include with this letter a VA Form 21-8940 for the Veteran to complete. 2. Concurrent with the above, the RO/AMC should advise the Veteran of the potential relevance of his employment records and inquire if he has received any pertinent private medical treatment for his service-connected disabilities. The RO/AMC should provide him with an authorization for release of records from any relevant employers and/or private treatment providers. If any authorizations are received from the Veteran, make reasonable attempts to obtain the identified records and associate any available records with the claims file or virtual record. If unable to obtain any of the relevant records sought, notify the Veteran of the unavailability of the records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C.A. § 5103A(b)(2) (West 2002). 3. The RO/AMC should obtain the Veteran's outstanding relevant VA treatment records, to include those records identified at the South Texas Healthcare System dated from September 15, 1999 to August 2, 2009. All efforts to obtain these records must be documented in the claims file or virtual record. Such efforts should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile. 4. After additional relevant treatment and/or employment records are obtained and associated with the claims file or virtual record, schedule the Veteran for a VA examination to determine the current level of severity of his headaches. The claims file, including a copy of this remand and any relevant records contained in the virtual record, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. Based on examination findings and other evidence contained in the claim file and virtual record, the examiner must offer an opinion as to the likelihood that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities, which at present include tinnitus and headaches due to undiagnosed illness. The examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to secure or maintain substantially gainful employment in light of his service-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions expressed. 5. Then, the RO should readjudicate the claim. If the claim is not granted in full, the Veteran must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate decision. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ S. L. Kennedy 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).