Citation Nr: 1510886 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 12-14 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease, left shoulder, currently rated as 20 percent disabling. 2. Entitlement to an increased rating for degenerative joint disease of the thoracolumbar spine, currently rated as 20 percent disabling. 3. Entitlement to an increased rating for degenerative joint disease, right hip, currently rated as 10 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and one additional witness ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from May 1974 to May 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a Travel Board hearing in July 2013 and a copy of that transcript is of record. A review of the Veteran's Veterans Benefits Management System (VBMS) file reveals private treatment records dated October 2014 to February 2015, a February 2015 claim for TDIU, and a February 2015 statement from the Veteran. A review of the Veteran's Virtual VA claims file reveals the February 2013 hearing transcript and VA treatment records dated March 2008 to March 2012. Additionally, as will be discussed below, the Board assumes appellate jurisdiction over the Veteran's raised and inextricably intertwined claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to service connection for major depressive disorder and chronic adjustment disorder; entitlement to increased ratings for service connected diverticulitis, to include colorectal cancer, and diabetes mellitus, type II; entitlement to a separate rating for Hepatitis C; and entitlement to an earlier effective date for the grant of service connection for erectile dysfunction have been raised by the record in a February 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In a February 2013 statement from the Veteran's representative and at the July 2013 Board hearing, the Veteran and his representative indicated that his service connected disabilities on appeal had worsened. The Veteran and his representative also asserted that the April 2012 VA examiner did not physically touch the Veteran or rise from his desk to conduct the examination. As such, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board acknowledges that in his February 2015 statement, the Veteran stated that he should be granted benefits without further examination. However, in order to ensure the Veteran his due process rights the Board finds that a remand for a VA examination is necessary. Finally, in his February 2015 statement, the Veteran asserted that he was no longer able to work due to his service-connected disabilities. The Board finds that the claim for TDIU is inextricably intertwined with the issues being remanded and referred above and the disposition of the TDIU claim must be deferred pending resolving these preliminary matters. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran the opportunity to identify any new pertinent medical evidence, from VA or otherwise. The AOJ/AMC should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. Specifically, outstanding VA treatment records dated March 2012 to the present should be obtained. 2. Schedule the Veteran for a new VA examination, conducted by a VA examiner other than the April 2012 examiner, to determine the current nature and severity of his left shoulder disability, low back disability, and right hip disability. The claims folder must be made available to and reviewed by the examiner. All indicated studies, including x-rays and range of motion studies in degrees, should be performed. For each disability, the examiner should perform an appropriate range of motion examination, expressing all findings in degrees and noting the degree where painful motion begins, if at all. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. For each disability, the examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. The examiner should also note whether the low back disability results in incapacitating episodes, and indicate the total duration of any episodes. The examiner should also discuss the degree of occupational impairment attributable to the Veteran's service connected left shoulder, low back, and right hip disabilities. In particular, the examiner should describe what types of employment activities would be limited because of these service-connected disabilities, and what types of employment would not be limited (if any). The examiner is requested to provide a thorough rationale for any opinion provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 3. After completing the above, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 2014). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).