Citation Nr: 1417193 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 13-07 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for shell fragment wound residuals right parietal area, also claimed as traumatic brain injury (TBI), to include whether a separate evaluation is warranted for headaches prior to March 15, 2013. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1949 to November 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's claim was decided by a special processing unit and following issuance of the rating decision, the claim was returned to the RO in Oakland, California. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the Veteran's March 2009 claim for an increased rating and his January 2010 Notice of Disagreement, he indicated that he receives medical treatment at "VA Fresno." Moreover, at a June 2009 VA examination, he reported being treated previously at a VA Hospital in Fresno. The earliest VA treatment records associated with the claims file are dated May 2009 and appear to be incomplete. Also, on the Veteran's March 2013 VA Form 21-8940, the Veteran indicated that he was treated by Dr. R.G. at a VA facility in Fresno. There are no treatment records from Dr. R.G. associated with the Veteran's physical or virtual claims folder. As there is evidence of missing VA treatment records, they should be obtained on remand. Next, the Veteran has contended that his service-connected residuals of TBI and his hearing loss render him unemployable. A claim for a total disability rating based on individual unemployability is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). In this case, the RO denied TDIU in December 2013, and the Veteran did not appeal. However, because the Court has interpreted TDIU as being part and parcel of an increased rating claim, and because the Veteran has specifically raised TDIU in the context of the service-connected disability currently before the Board, the Board must take jurisdiction of TDIU. The October 2013 VA examination for TBI indicates that the Veteran's TBI or residual headaches do not affect his ability to work. The examiner stated that the Veteran is capable of sedentary work. He clarified, however, that the Veteran "can use upper extremities for grasping, gripping reaching overhead, but will not be able to do key board entry." It remains unclear what type of sedentary work this would allow the Veteran to do. At the October 2013 VA examination for hearing loss, the examiner opined that based on the testing results, the Veteran is unable to effectively communicate in an employment setting. However, an addendum from the examiner stated that the reliability of the Veteran's speech discrimination scores is poor. Specifically, the examiner noted that the Veteran's February 2013 speech discrimination scores were 72 percent and 68 percent for the right and left ear, respectively. However, the examiner opined that the "degradation of scores to 14 [percent] and 24 [percent] would be unlikely in 8 months of time." As it appears that there is inadequate information to adjudicate the claim, a remand for a new examination is warranted. Also, although the Veteran submitted a VA Form 21-8940, it does not appear that the Veteran was given proper notice regarding his TDIU claim. On remand, proper notice should be provided. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. 2. Obtain and associate with the claims file all pertinent VA medical records, including those from VAMC in Fresno, dating from March 2008 (the relevant appeal period) to present. 3. Then, schedule the Veteran for appropriate VA examination(s) to determine the current manifestations and functional impact of his service-connected hearing loss and TBI. The claims file should be reviewed in conjunction with the examination(s). The examiner(s) should interview the Veteran as to his employment and education history. The examiner is asked to specifically comment on the impact of the service-connected disabilities on the Veteran's occupational functioning (i.e., ability to perform heavy or sedentary tasks, sit or stand for extended periods, type, write, etc.). 4. Ensure the development outlined above has been accomplished, and then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, 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). _________________________________________________ Bethany L. Buck 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).