Citation Nr: 1418726 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 08-08 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a compensable disability rating for service-connected pneumoconiosis prior to September 10, 2010, entitlement to a disability rating in excess of 10 percent from September 10, 2010 to October 8, 2010, and entitlement to a disability rating in excess of 30 percent on and after October 9, 2010. 2. 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.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to February 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. During the pendency of the appeal, the Veteran's service-connected pneumoconiosis was assigned a disability rating of 10 percent, effective September 10, 2010, and assigned a disability rating of 30 percent, effective October 9, 2010. The issue has been characterized as shown on the title page and remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). In January 2009, the Veteran testified during a local hearing before a Decision Review Officer (DRO). A transcript of the hearing is associated with the claims file. In October 2009, the Veteran testified during a Travel Board hearing before a Veterans Law Judge (VLJ), who is no longer employed at the Board. A transcript of the hearing is associated with the claims file. The Veteran requested a new hearing and the Board remanded the case in August 2012 to fulfill the request. However, in October 2012, the Veteran withdrew his request for a hearing. Therefore, compliance with the August 2012 remand is moot and the Board may proceed. Stegall v. West, 11 Vet. App. 268 (1998). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran reported problems with employment and that he retired due to his "breathing problems." The Board finds that a claim for a TDIU has been raised. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's service-connected pneumoconiosis has been assigned staged ratings. During the rating period on appeal, a noncompensable rating was in effect prior to September 10, 2010, a 10 percent disability rating was assigned, effective September 10, 2010, and a 30 percent disability rating was assigned, effective October 9, 2010. It appears that the ratings were assigned due to findings in VA medical treatment records. However, such VA medical treatment records are not associated with the Veteran's paper claims file or electronic file. In addition, the September 23, 2010 VA examination report listed pulmonary function test results dated September 2010 and October 2009. The most recent VA medical treatment records are dated in August 2009. Further, the December 2011 Supplemental Statement of the Case (SSOC) noted review of diagnostic testing completed on October 9, 2010, which has not been associated with the paper claims file or electronic file. As VA treatment records have been identified and reviewed by the September 2010 VA examiner and in the SSOC, but are not associated with the paper claims file or electronic file, the Board must remand to request these records. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, the Veteran reported continuous private medical treatment with Dr. E.C. as noted in the hearing transcript. The claims file contains private treatment records from Dr. E.C. dated to June 2007. The Veteran should be asked to complete a form authorizing all private health care providers, to include Dr. E.C., to release to VA records of treatment of the Veteran for his service-connected pneumoconiosis. The Veteran was provided an adequate VA examination in September 2010 in compliance with the Board's remand. See Stegall, supra. The September 2010 VA examiner explained that the Veteran had no residuals related to his service-connected pneumoconiosis. An August 2007 VA examiner stated that the Veteran was service-connected for pneumoconiosis diagnosed in 1968 without any residual effects for 20 years. The examiner commented that the Veteran had new pulmonary diagnoses in approximately 2002 with COPD and asthma. However, the Veteran was assigned a higher disability rating of 30 percent after the September 2010 VA examination based on evidence that is not associated with the claims file. The evidence may indicate a material change in his disability as the Veteran was assigned a higher rating. See 38 C.F.R. § 3.327(a) (2013). Therefore, the Board will order a new VA examination to evaluate the Veteran's service-connected pneumoconiosis. Finally, a claim for entitlement to a TDIU has been raised by the record in accordance with Rice, 22 Vet. App. 447 (2009). The Veteran must be sent a notification letter and the issue must be adjudicated. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a Veterans Claims Assistance Act of 2000 (VCAA) notification letter with respect to a TDIU claim, and provide a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion by the Veteran with instructions to return the form to the RO. 2. Request that that the Veteran identify the names, addresses and dates of treatment for all health care providers of treatment for the service connected pneumoconiosis since 2006. The Veteran must be provided VA Forms 21-4142, Authorization and Consent to Release Information to VA, for treatment records from any private health care provider, to include updated records from Dr. E.C., for his service-connected pneumoconiosis. If private records are identified and authorized for release to VA, the AOJ must make two attempts for the private treatment records unless it is determined that the records do not exist or a second request for such records would be futile. The Veteran must be notified accordingly of any inability to obtain records. 3. Request updated VA treatment records from the West Haven VAMC, to include any associated clinics, from August 2009 to the present. 4. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected pneumoconiosis. The Veteran's paper claims file and electronic records must be made available for review by the examiner, and the examiner must indicate in the report that such a review was completed. All indicated testing must be conducted and the manifestations of the Veteran's pneumoconiosis must be described. The examiner must address whether manifestations of the Veteran's service-connected pneumoconiosis can be clinically distinguished from manifestations of his non service-connected pulmonary/lung disabilities to include COPD, asthma, and pleural disease. The examiner must comment on the effects, if any, of the Veteran's service-connected pneumoconiosis on his ability to engage in a substantially gainful occupation. Thereafter, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected pneumoconiosis, taking into consideration his level of education, training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. A complete rationale must be provided for any opinion reached. 5. Following completion of the above development, readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and allow for an appropriate amount of time for response. Thereafter, return the case 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). _________________________________________________ U.R. POWELL 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).