Citation Nr: 1622086 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 09-45 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased (compensable) rating for subacute cutaneous lupus erythematosus (previously discoid lupus erythematosus) prior to September 26, 2012, and over 60 percent thereafter. 2. Entitlement to an increased rating for lumbar spine strain with degenerative joint disease, currently evaluated as 10 percent disabling. 3. Entitlement to a total rating based on individual unemployability (TDIU) prior to September 26, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to July 1992. He has a Combat Infantryman Badge among his awards and decorations. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in Waco, Texas and the VA Appeals Management Center. The initial claim leading to this appeal was from 2008. By rating decision in April 2013, the zero percent rating for subacute cutaneous lupus erythematosus was increased to 60 percent effective September 26, 2012. However, the issue remains in appellate status as the maximum schedular rating has not been assigned since the date of claim in June 2008. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was afforded a Travel Board hearing in December 2011 by a Veterans Law Judge who is currently unable to participate in this appeal. The transcript is of record. VA Law requires that the Veterans Law Judge who conducts a hearing appeal must participate in the decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). The appellant was offered the opportunity to testify before another Board Veterans Law Judge. However, he declined another personal hearing in correspondence dated in March 2016. The Board will, of course, fully consider the testimony obtained on personal hearing in December 2011. This case was remanded by Board decision in July 2012. By rating action in June 2013, the Veteran was awarded a total rating based on unemployability due to service-connected disability, effective September 2012. The appeal as to the earlier period remains alive. Following review of the record, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that the symptoms associated with his service-connected lupus and back disorders are more severely disabling than reflected by the currently assigned disability evaluations and warrant higher ratings. His representative has also argued that the increased ratings assigned should have been in effect earlier, on either a schedular or extraschedular basis. The evidence indicates that the Veteran receives VA treatment for complaints and disorders including lupus. The most recent records date through June 2013. As VA has notice of the potential existence of additional records, they must be retrieved and associated with other evidence already on file. See Bell v. Derwinski, 2 Vet. App. 611(1992). Therefore, VA outpatient records dating from July 2013 through the present should be requested and associated with the claims file or the electronic record. Review of the record discloses that the Veteran last had VA examinations of the service-connected disorders at issue in September 2012. The Court of Appeals for Veterans Claims has held that when the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403; Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). As such, the appellant should be scheduled for current VA examinations for lupus and lumbar spine disability. Color unretouched photographs should be obtained of his head, face, neck and arms. Accordingly, the case is REMANDED for the following actions: 1. Request VA outpatient records dating from June 2013 through the present and associate them with the claims folder or the electronic record. All attempts to obtain records should be documented. 2. Schedule the Veteran for examinations of subacute cutaneous lupus erythematosus, and lumbar spine strain with degenerative joint disease by appropriate VA examiners. The examiners must be provided access to the claims folder and Virtual VA/VBMS. A detailed assessment of the Veteran's pertinent medical history, current complaints and clinical findings should be furnished. All necessary tests and studies should be performed and all functional impairment should be set forth in detail. The examiner for lupus must provide color photographs of the Veteran's head, face, neck and arms. 3. After taking any further development deemed appropriate, re-adjudicate the issues on appeal, to include earlier dates for increased and TDIU claims on a schedular, and as needed on an extraschedular basis. If a benefit sought is not granted, provide the appellant and representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned 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 2014). ______________________________________________ MICHAEL D. LYON 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) (2015).