Citation Nr: 1343048 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-10 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a disability of the right Achilles tendon, post rupture and repair. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from March 1974 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the St. Petersburg, Florida, regional office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned in March 2013. A transcript of this hearing is in the electronic record. 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 most recent VA examination was in November 2009, as argued by the Veteran; the examination report does not address all of the required factors of functional impairment. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013). The Veteran has submitted award letters from the Social Security Administration (SSA) that show he has been awarded disability benefits based at least in part on his disability of the right Achilles tendon. The decision itself and the medical records relied upon to reach the decision have been submitted. VA has a duty to obtain these records. TDIU is part of the claim for an increased evaluation if raised by the record and must be addressed. Rice v. Shinseki, 22 Vet. App. 447 (2009). An opinion is needed as to whether the service connected disability causes unemployability. Accordingly, the case is REMANDED for the following action: 1. Obtain from SSA the records pertinent to the Veteran's claim for disability benefits as well as the medical records relied upon concerning that claim. Efforts to obtain these records must continue until they are obtained; unless it is reasonably certain that they do not exist or that further efforts would be futile. 2. After obtaining available SSA records, schedule the Veteran for an examination for his right Achilles tendon disability. The claims folder must be provided to the examiner. The examiner should report the ranges of ankle motion, and any other joint for which the Achilles tendon disability causes impairment. The examiner should report the additional limitation of motion (in degrees) that results from pain, weakness, incoordination, excess fatigability, or flare-ups. The examiner should opine as to the severity of the limitation of motion and the severity of any associated foot disability. The examiner should note whether the The examiner should state whether it is as likely as not that the Veteran's service connected disabilities of the right Achilles tendon, thoracolumbar spine, and left Achilles tendon render him incapable of obtaining and maintaining substantial employment for which he would otherwise be qualified. The reasons for all opinions should be provided. If the examiner is unable to provide any requested opinion without resort to speculation, the reasons for this inability should be described, and any missing evidence that might enable the opinion to be provided should be obtained. The examiner is advised that the Veteran is competent to report limitations during flare-ups. 3. If there is any period when the Veteran was unemployed and did not meet the percentage requirements for TDIU, refer the case to VA's Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 4.16(b). 4. If any benefit sought on appeal, remains denied issue a supplemental statement of the case and return the case to the Board, if otherwise in order. The Veteran 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). _________________________________________________ Mark D. Hindin 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).