Citation Nr: 1618171 Decision Date: 05/05/16 Archive Date: 05/13/16 DOCKET NO. 07-05 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to July 12, 2014, and in excess of 30 percent as of July 12, 2014, for functional bowel syndrome. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Jan Dils, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded the claim in November 2010 and May 2013. In August 2011, the Veteran presented sworn testimony during a Travel Board hearing in Winston-Salem, North Carolina, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. In a December 2015 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran's functional bowel syndrome to 30 percent effective July 12, 2014. As the AOJ did not assign the maximum disability rating possible for the entire period on appeal, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The issue has been recharacterized above. The appeal is REMANDED to the AOJ via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Board remanded the Veteran's increased rating claim in May 2013 to obtain VA treatment records from the Durham VA Medical Center (VAMC). Although the AOJ obtained updated VA treatment records from the Salisbury VAMC, it appears that they inadvertently obtained treatment records for a different veteran from the Durham VAMC. Appropriate action has been taken to have those misfiled records removed from the Veteran's electronic file. There are no recent treatment records from the Durham VAMC for the Veteran in the available file, nor is there any documented attempt to obtain any such records. Accordingly, the increased rating claim must be remanded to obtain these records in compliance with the December 2015 Board Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the July 2014 VA examination indicates that the Veteran was scheduled for a colonoscopy at the Salisbury VAMC in July 2014. On remand, any updated treatment records from the Salisbury VAMC, to include those relating to the scheduled colonoscopy, should be obtained as well. With regard to the TDIU claim, the Veteran claims that for many years he has been unable to maintain gainful employment due to his functional bowel syndrome, which has been remanded herein. The readjudication of the increased rating claim may, therefore, affect the TDIU claim. These issues are inextricably intertwined. The increased rating claim must be readjudicated prior to the readjudication of the TDIU claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). Accordingly, the case is REMANDED for the following actions: 1. Attempt to obtain and associate with the claims file any outstanding VA treatment records from the Durham VAMC, particularly relating to his GI consultations, the Salisbury VAMC, particularly relating to a July 2014 colonoscopy, and any other VA facilities identified by the Veteran. If the AMC is unable to secure any VA treatment records, it must notify the Veteran and his attorney and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 2. After completing the above actions and any other development that may be indicated by any response received as a consequence of the action taken in the paragraphs above (to include consideration of the need for a new VA examination), the claims of entitlement to an increased rating for functional bowel syndrome and TDIU should be readjudicated. If either of the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).