Citation Nr: 1605566	
Decision Date: 02/12/16    Archive Date: 02/18/16

DOCKET NO. 11-00 945	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to a compensable rating for a bilateral hearing loss disability.

2. Entitlement to an increased rating in excess of 10 percent for hallux rigidus.

3. Entitlement to an increased rating in excess of 10 percent for metatarsalgia.

4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1985 to April 1989.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to 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 indicated that his hallux rigidus prevents him from working. See November 2015 Hearing Transcript at 11. As such, the issue of TDIU has been raised by the record.

When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). 

However, the Veteran does not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more, even when considering TDIU and temporary total ratings. 38 U.S.C.A. § 1114(s); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. §§ 3.350(i), 4.29, 4.30.
There is no lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb for VA purposes. 38 U.S.C.A. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time.

The Veteran is currently service-connected for hallux rigidus and metatarsalgia, both affecting the right foot. In his initial claim the Veteran requested an increased rating for a "right foot condition," and during the course of the appeal the Veteran has predominantly referred to worsening symptomatology of his right foot generally. See, e.g., November 2015 Hearing Transcript, August 2010 Notice of Disagreement. As the Veteran's two service-connected right foot disabilities are closely related and the Veteran's statements, particularly his testimony, reflect that he has been claiming an increased rating for his foot generally, the Board will expand the Veteran's original claim for an increased rating for a "right foot condition" to include both his service-connected hallux rigidus and his metatarsalgia. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The title page has been updated accordingly.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2015. A transcript of the hearing is associated with the electronic claims files.

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 issues of service connection for sleep apnea, and entitlement to increased ratings fora right ankle disability have been raised by the record in January 2016 statements, 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) (2015). 

The issues of entitlement to an increased ratings for hallux rigidus and metatarsalgia, and the issue of entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDING OF FACT

During his November 2015 hearing, prior to the promulgation of a Board decision, the Veteran stated that he wished to withdraw his appeal for entitlement to a compensable rating for a bilateral hearing loss disability.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to a compensable rating for a bilateral hearing loss disability. 38 U.S.C.A. §§ 7105(a), 7108 (West 2014); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision, or may be withdrawn on the record at a hearing. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. During the November 2015 hearing, the Veteran stated that he wished to withdraw his pending appeal of the issue of entitlement to a compensable rating for a bilateral hearing loss disability. See November 2015 Hearing Transcript at 4-5. As the Veteran has properly withdrawn the appeal prior to a final Board decision, the Board no longer has appellate jurisdiction and can take no further action on the matters. 38 C.F.R. §§ 20.202, 20.204(b), 20.1100(b).


ORDER

The appeal for entitlement to a compensable rating for a bilateral hearing loss disability is dismissed.

REMAND

As discussed above, the Board has inferred a claim of entitlement to TDIU and taken jurisdiction over it. See Rice, 22 Vet. App. at 453-54. On remand the Veteran should be provided with notice of the evidence necessary to substantiate a claim for TDIU. Any further development deemed necessary should be conducted, to include obtaining a medical examination regarding the functional impairment resulting from the Veteran's service-connected disabilities.

VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159. During his November 2015 hearing testimony, the Veteran indicated that he seeks occasional treatment from the emergency room located at William Beaumont Army Hospital during particularly painful flare-ups of his hallux rigidus. As these records are potentially relevant to determining the severity of the Veteran's hallux rigidus and metatarsalgia, on remand the Veteran should be asked to submit or authorize for release any private treatment records relevant to his disabilities, to include from William Beaumont Army Hospital.

Finally, during his November 2015 hearing, the Veteran and his representative alleged that his disability had worsened since his last examination in December 2015. Specifically, the Veteran stated that his disability had worsened to the point where he was unable, or almost unable, to use his toe, which he is competent to report. As there is an allegation and indication of an increase in severity of the Veteran's hallux rigidus and metatarsalgia, the claims must be remanded for a new VA examination to determine the current severity of these disabilities. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995).

While the Veteran is currently in receipt of the maximum allowable rating for hallux rigidus under Diagnostic Code 5281, a new examination is still warranted. While the findings of the examination may not result in a higher schedular rating under Diagnostic Code 5281, the severity of the Veteran's symptoms must be determined in order to ensure that later determinations concerning the applicability of other Diagnostic Codes and extraschedular consideration are accurate.

As noted in the introduction, the Board has taken jurisdiction over the claim for an increased rating for metatarsalgia. As the examination for the right toe may provide information on metatarsalgia the two issues are inextricably intertwined, and therefore the issue of entitlement to an increased rating for metatarsalgia must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with appropriate notice of VA's duties to notify and assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information.

2. Contact the Veteran and request that he submit or authorize for release all private treatment records associated with his hallux rigidus and metatarsalgia, to include from William Beaumont Army Hospital, and any other private medical facilities where he has sought treatment for his disabilities.

Then, make appropriate efforts to obtain any records so authorized for release. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them.

3. Obtain any further outstanding VA treatment records.




4. Schedule the Veteran for a VA examination with a podiatrist in order to ascertain the current severity of his service-connected hallux rigidus and metatarsalgia. The electronic claims file should be reviewed by the examiner and a note that it was reviewed should be included in the examination report. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report.

The examiner should describe the nature and severity of the disabilities, as well as the degree of occupational impairment, if any, resulting therefrom.

5. Thereafter, readjudicate the issues on appeal, to include TDIU and to include whether the Veteran's increased rating claims should be referred to the appropriate entity for consideration of an extraschedular evaluation.  If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond.

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


Department of Veterans Affairs