Citation Nr: 1414442 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 09-01 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for right thigh tumor. 2. Entitlement to service connection for bilateral hip disability. 3. 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 J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service for over 20 years, from December 1979 until his retirement in January 1999. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Oakland, California Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction was subsequently transferred to the RO in Honolulu, Hawaii. In May 2011, the Veteran testified at a Board video-conference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the claims file. At the Board hearing, the Veteran submitted additional evidence along with a waiver for RO consideration of this evidence. Nevertheless, in light of the need to remand the issues on appeal for further development, the RO will have the opportunity to consider the additional evidence. At the Board hearing, the Veteran also asserted that he was seeking service connection for a low back disability. The Board observes that this issue was also denied in the May 2008 decision, from which the current appeal arises. Review of the claims file does not reveal that the Veteran submitted a notice of disagreement pursuant to 38 C.F.R. § 20.201 with respect to the low back disability claim, as the June 2008 notice of disagreement filed in association with the issues on appeal did not express dissatisfaction with the determination denying service connection for a low back disability or a desire to contest the result. As such, this matter is not currently before the Board and the issue of entitlement to service connection for a low back disability is referred back to the RO for appropriate action. The Veteran has asserted that he is seeking service connection for a cancerous growth on the right thigh and the RO has characterized the issue on appeal as such. However, VA treatment records, which document a mass on the right thigh, show that the tumor was determined to not be cancerous. Rather the tumor was described as a granular cell tumor. The Veteran also testified that he had not been diagnosed with cancer. Nevertheless, the U. S. Court of Appeals for Veterans Claims (Court) recently found that the use of 'condition(s)' in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue on appeal to encompass all possible disabilities with respect to the Veteran's tumor on his right thigh. Moreover, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA reveals that, with the exception of additional VA treatment records dated to April 2013, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Further, the Veteran's VBMS file does not contain any documents at this time. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Initially, a review of Virtual VA shows that additional VA treatment records dated to April 2013 were associated with the Veteran's Virtual VA record. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). In the instant case, at the Board hearing, the Veteran waived RO consideration of any additional VA treatment records dated from February 2008 until the date of the Board hearing in May 2011. It is unclear whether this waiver applies to the additional records dated to April 2013, which were subsequently obtained and associated with the Veteran's Virtual VA electronic record. See 38 C.F.R. § 20.1304(c). Accordingly, the issues on appeal must be remanded for consideration of any additional evidence. The Veteran has asserted that his right thigh tumor and bilateral hip disability are related to service. With respect to the right thigh tumor, he has asserted that the tumor was related to exposure to hazardous decontamination chemicals while in service. A service treatment record does document occupational exposure in July 1984, but what type of exposure is not clear. Service treatment records also include a March 1996 surgical pathology report showing that a nodule excised from his abdomen was determined to be granular cell tumor. VA treatment records showed that the Veteran presented in April 2007 with a two month history of a left thigh mass. A May 2007 biopsy showed no evidence of malignancy and expression suggested granular cell tumor and the possibility of fibromatosis was also considered. The Veteran has also asserted that his bilateral hip disability was related to the ongoing physical activities, including running, required during his 20 years of active service. He also reported injuring his hip when he slipped and fell off a five ton truck and hit a tent on his right side. The Veteran further reported that he continued to suffer hip problems since service. Although he was hit by an ice cream truck in September 2007, the Veteran testified that he had problems with his hips prior to this incident. The Board observes that October 2007 VA x-rays of the hips showed degenerative changes of the right and left hips. The VA physician indicated that it was unclear whether the arthritis symptoms were exacerbated by the accident as no prior imaging or evaluation was done. The Veteran has not been afforded VA examinations with respect to these disabilities. Under these circumstances and in light of the Veteran's contentions, the Veteran should be afforded a VA examination to determine whether his right thigh tumor and bilateral hip disability are etiologically related to service. 38 C.F.R. § 3.156; see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, when determining service connection, all theories of entitlement must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As such, the examiner should also offer an opinion on whether any bilateral hip disability is secondary to his service-connected left and right knee disabilities. Moreover, in light of the Veteran's contentions concerning exposure to hazardous chemicals, the Board finds that the RO should also obtain his service personnel records. The present appeal also includes the issue of entitlement to a TDIU which is inextricably intertwined with the other issues on appeal. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). The provisions of 38 C.F.R. § 4.16(a) set out minimum percentage requirements for service connected disabilities that serve as the basis for the grant of TDIU. In the instant case, the Veteran's Virtual VA electronic record includes a May 2013 rating decision that granted separate 40 percent disability ratings for the Veteran's service-connected left and right knee disabilities, effective November 15, 2010. As of that date, the Veteran had a combined disability evaluation of 80 percent. 38 C.F.R. § 4.25. Given that he had one disability rated as 40 percent disabling and a combined rating over 70 percent, as of that date, he met the percentage requirements for a TDIU. However, prior to November 15, 2010, the Veteran's service connected disabilities did not meet these percentage requirements. It is VA policy, however, that all veterans who are unable to work due to service connected disability will be awarded TDIU. 38 C.F.R. § 4.16(b). Where a veteran does not meet the percentage requirements, but there is evidence of unemployability, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first ensure that the TDIU claim is referred to the Director of C&P for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001). While the Veteran met the percentage requirements for TDIU as of November 15, 2010, at the Board hearing, the Veteran reported that he was returning to work in approximately six months. Nevertheless, the Board cannot grant TDIU in the first instance without ensuring that the claim is adjudicated in accordance with 38 C.F.R. § 4.16(b). Thus, this matter must also be returned to the RO for further development. Lastly, while on remand, the Veteran should be given an opportunity to identify all treatment records referable to his disabilities on appeal. In this regard, the Veteran testified that, in March 2011, he underwent right hip replacement surgery at Tripler Army Medical Center. These records have not been associated with the claims and the RO should take appropriate steps, including obtaining necessary authorization, to obtain such records. Thereafter, any identified records, including VA treatment records dated from April 2013 to the present, should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any additional healthcare providers who have treated him for the disabilities on appeal, to specifically include March 2011 surgery records from Tripler Army Medical Center. The RO should also request the Veteran's current employment status. After securing any necessary authorization from him, obtain all identified treatment records, to include VA treatment records dated from May 2013 to the present. 2. Obtain the Veteran's service personnel records. 3. After obtaining any outstanding records, schedule the Veteran for an appropriate VA examination to address the etiology of the Veteran's left thigh tumor. It is imperative that the claims file be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. All tests deemed necessary by the examiner are to be performed. After examining the Veteran and reviewing the claims file, the examiner should opine whether it is at least as likely as not (a 50% or higher degree of probability) that any current right thigh tumor is causally related to the Veteran's service, to include exposure to hazardous chemicals. A detailed rationale for all opinions expressed should be provided. In proffering this opinion, the examiner should also consider the findings of a granular cell tumor of the abdomen, as documented in the service treatment records, and address whether there is any relation between the two tumors. 4. After obtaining any outstanding treatment records, schedule the Veteran for an appropriate VA examination to address the etiology of any current bilateral hip disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. All tests deemed necessary by the examiner are to be performed. All diagnoses should be clearly reported. After examining the Veteran and reviewing the claims file, with respect to each diagnosed disability, the examiner should respond to the following: a) Whether it is at least as likely as not (a 50% or higher degree of probability) that any bilateral hip disability is causally related to the Veteran's service, to include his physical activities over a 20 year period while on active duty. b) Whether it is at least as likely as not (a 50% or higher degree of probability) that any current bilateral hip disability is proximately due to, or caused by, the Veteran's service-connected left and right knee disabilities. c) Whether it is at least as likely as not (a 50% or higher degree of probability) that any current bilateral hip disability has been aggravated by the Veteran's service-connected right and left knee disabilities. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. 5. In the interest of avoiding future remand, the RO should then review the examination reports to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination reports. 6. Undertake any development deemed warranted, to include obtaining any necessary VA examinations and/or opinions. Determine whether the criteria for TDIU, pursuant to 38 C.F.R. § 4.16(a) have been met as of November 15, 2010 and whether the criteria for extra-schedular TDIU consideration prior to November 15, 2010, pursuant to 38 C.F.R. § 4.16(b), were met, to include referral to the Director, Compensation and Pension Service for adjudication. 7. Thereafter, the issues on appeal should be readjudicated. If the full benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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. 2013). _________________________________________________ A.J. TURNIPSEED Acting 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).