Citation Nr: 1514612 Decision Date: 04/06/15 Archive Date: 04/21/15 DOCKET NO. 10-11 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent prior to March 18, 2010 and in excess of 40 percent from March 18, 2010 forward for residuals of prostate cancer, status post prostatectomy. 2. Entitlement to a compensable rating for erectile dysfunction. 3. Entitlement to an initial compensable rating prior to August 30, 2013 and in excess of 10 percent from August 30, 2013 forward for a right great toe injury, to include residuals of a fracture. 4. Entitlement to service connection for a bilateral hand disability, to include arthritis. 5. Entitlement to service connection for a bilateral foot disability, to include arthritis. 6. Entitlement to service connection for a low back disability, to include arthritis and scoliosis. 7. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disorder (COPD) and bronchitis. 8. Entitlement to service connection for hand tremors, to include Parkinson's Disease and essential tremors, to include as due to herbicide exposure. 9. Entitlement to service connection for a bilateral lower extremity neurological disorder, to include a burning sensation in the feet and right lower extremity numbness, to include as due to herbicide exposure. 10. Entitlement to service connection for posttraumatic stress disorder (PTSD). 11. Entitlement to service connection for multiple arthralgias, claimed as bone and joint pain. 12. Entitlement to service connection for a muscle condition, to include weakness and aches with tripping. 13. Entitlement to service connection for bilateral shoulder disabilities. 14. Entitlement to service connection for a cervical spine disability, to include degenerative disc disease (DDD) and damaged vertebrae. 15. Entitlement to service connection for right-sided back pain. 16. Entitlement to service connection for a bilateral knee disability, to include osteoarthritis. 17. Entitlement to service connection for an eye disability. 18. Entitlement to service connection for dizziness and lightheadedness, to include as due to herbicide exposure. 19. Entitlement to service connection for nose bleeds, to include as due to herbicide exposure. 20. Entitlement to service connection for night sweats. 21. Entitlement to service connection for heart condition, to include systolic murmur, coronary artery disease, arteriosclerosis, endocarditis, palpitations, erratic arrhythmias, angina and cardiovascular-renal disease to include hypertension, to include as due to herbicide exposure. 22. Entitlement to service connection for ulcers, to include peptic ulcers. 23. Entitlement to service connection for a liver condition, to include an irregular hypoechoic lesion and a cyst, to include as due to herbicide exposure. 24. Entitlement to service connection for a gastroesophageal disability, to include gastroesophageal reflux disease (GERD) and Barrett's syndrome, to include as due to herbicide exposure. 25. Entitlement to service connection for a bladder condition, to include calculi, status post TURP, and surgical changes or defect. 26. Entitlement to service connection for a kidney condition, to include a right kidney cyst and calculi (claimed as nephrolithiasis), to include as due to herbicide exposure. 27. Entitlement to service connection for a skin condition, to include dermatitis, Keratin cysts and chloracne, to include as due to herbicide exposure. 29. Entitlement to service connection for porphyria cutanea tarda, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1961 to January 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In that decision, the RO granted an increased rating of 20 percent for residuals of prostate cancer, granted service connection for residuals of a right toe fracture at a noncompensable rating, and denied all of the other claims on appeal. The Board notes that in his original March 2010 substantive appeal, the Veteran indicated he was not appealing the issues of entitlement to an increased rating for erectile dysfunction, and service connection for right sided back pain, a bilateral knee disability, a cervical spine disability, a bilateral hand disability, a bilateral foot disability, a low back disability, and ulcers. However, the RO continued to adjudicate these claims, including all of them as issues in the September 2013 supplemental statement of the case. All of the issues noted in the original statement of the case were certified to the Board on appeal in October 2013. The Veteran also indicated in a December 2013 substantive appeal, in reply to the September 2013 supplemental statement of the case, that he wished to appeal all of the listed issues. As VA has continued to treat all of the issues as being on appeal despite the Veteran's statements in March 2010, the Board finds VA has waived any objections as to the content of the appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009); see also Rowell v. Principi, 4 Vet. App. 9, 17 (1993). Therefore, all of the issues adjudicated in the original statement of the case are currently on appeal. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran has not submitted evidence that his service connected disabilities have rendered him unable to obtain or maintain substantially gainful employment, and therefore the issue of TDIU has not been raised by the record. The RO granted increased ratings of 20 percent and 40 percent for residuals of prostate cancer in June 2008 and April 2012 and an increased rating of 10 percent for residuals of a right toe fracture in September 2013. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claims are still in controversy and on appeal. Id. The Veteran filed a claim for an increased rating for his service connected residuals of prostate cancer, including erectile dysfunction, in April 2007, which was within one year of the February 2007 rating decision granting service connection for residuals of prostate cancer and erectile dysfunction. However, the April 2007 statement merely requested an increase in rating, and did not express disagreement with the initially assigned ratings. 38 C.F.R. § 20.201. Therefore, the April 2007 claim did not constitute a notice of disagreement with the ratings assigned in February 2007, and the claims currently on appeal are for increased ratings, as opposed to claims for increased initial ratings. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record reflects that in his March 2010 and December 2012 substantive appeals the Veteran requested a Travel Board hearing. Following a May 2011 postponement, the Veteran was notified in August 2014 that he had been scheduled for a Travel Board hearing in September 2014. However, it is noted that the September 2014 hearing was cancelled by the Veteran, although there is no record of a phone call or written correspondence doing so. The RO then sent a November 2014 letter informing the Veteran that he had been placed on the waiting list for a Travel Board hearing. See November 2014 Notification Letter. No correspondence from the Veteran or his representative has been received following the November 2014 letter indicating a desire to withdrawal the hearing request or indicating that a hearing is not desired. 38 C.F.R. §§ 20.702(e), 20.704(e). As such, it would appear that that Veteran's request for a Travel Board hearing remains outstanding, and therefore the claims must be remanded so that the Veteran, if not already scheduled, can be scheduled for a hearing, provided appropriate notice thereof, and given an opportunity to appear. 38 C.F.R. § 20.700(a). Accordingly, the case is REMANDED for the following action: If not already scheduled, schedule the Veteran for a Travel Board hearing as requested before a Veterans Law Judge at the earliest available opportunity, in accordance with applicable procedures, and notify the Veteran of the date and time thereof. The Veteran 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 2014). _________________________________________________ MICHAEL A. PAPPAS 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).