Citation Nr: 1641375 Decision Date: 10/24/16 Archive Date: 11/08/16 DOCKET NO. 13-24 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for residuals, left ankle sprain. 2. Entitlement to service connection for rheumatoid arthritis. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran. ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from April 1968 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A hearing was held before the undersigned Veterans Law Judge in July 2016. A transcript of the hearing is of record. The Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence. The Veteran submitted additional evidence along with a waiver for that evidence, as it was submitted after the case had been certified to the Board. Additionally, the Board notes that the automatic waiver provision applies in this case, as the appeal was certified after February 2, 2013. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial agency of original jurisdiction (AOJ ) review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). Additionally, the Board notes that it appears from the Veterans Benefits Management System (VBMS) that additional service treatment records were associated with the claim subsequent to the August 2013 SOC and, therefore, were not previously considered by the Agency of Original Jurisdiction (AOJ). The Veteran did not submit a waiver of the AOJ's consideration of that evidence. Nevertheless, this decision remands the claims for further development, and the AOJ will have the opportunity to consider the evidence submitted since the August 2013 statement of the case on remand. See 38 C.F.R. § 20.1304. The issue of a total disability rating based on individual unemployability (TDIU) has been raised by the record at the July 2016 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (holding that "the Board is required to consider all issues raised either by the claimant or by the evidence of record") (internal citations omitted), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 1999). Although the U.S. Court of Appeals for Veterans Claims has held "that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation," Rice v. Shinseki, 22 Vet.App. 447, 453-54 (2009), here, the issue before the Board is the Veteran's entitlement to service connection, which must be remanded for additional development. See, e.g., Comer v. Peake,. 552 F.3d 1362, 1367 (Fed. Cir. 2009) (holding that a request for "TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating") (emphasis added); Norris v. West, 12 Vet.App. 413, 420-21 (1999) ("A TDIU rating is not a basis for an award of service connection. Rather, it is merely an alternate way to obtain a total disability rating without being rated 100% disabled under the Rating Schedule") (emphasis added). Therefore, as the issue of an increased disability rating is not before the Board in this appeal, the Board concludes that it does not have jurisdiction over the issue of entitlement to TDIU at this time and referral, not remand, is the appropriate remedy here. See 38 C.F.R. § 19.9(b) (2015). Accordingly, the issue of entitlement to TDIU is REFERRED to the AOJ for appropriate action. This appeal was processed using VBMS and Virtual VA. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his left ankle disability is associated with his military service. See Bd. Hrg. Tr. at 3; August 2013 VA Form 9. Moreover, the Veteran has consistently indicated that he injured his left ankle in service. Id. The Veteran's VA treatment records show that he has ankle pain and osteoarthritis of his left ankle. See Feb. 2010 VA Treatment Record; Aug. 2009 VA Treatment Record. Additionally, the Veteran provided statement from his rheumatologist, indicating that the Veteran's left ankle arthritis has progressed due to overlying rheumatoid arthritis. To date, the Veteran has not been afforded a VA examination to determine the nature and likely etiology of his ankle disability. An examination or medical opinion is warranted when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, on remand, a VA examination should be provided. Similarly, the Veteran's VA treatment record shows that he has been diagnosed with rheumatoid arthritis since the 1990s. See Jun. 2008 VA Treatment Record. The Veteran's representative contends that the Veteran's rheumatoid arthritis is related to his left ankle disability. See Bd. Hrg. Tr. at 12. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of his rheumatoid arthritis. McLendon, 20 Vet.App. at 81. Finally, the Veteran's representative asserted that the Veteran's service treatment records do not appear complete. See Bd. Hrg. Tr. at 7. Thus, while on remand, the AOJ should attempt to obtain outstanding service treatment records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his ankle disability, and for his rheumatoid arthritis. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. The AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), and any other appropriate location, to request the Veteran's complete service treatment records. As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2), the AOJ should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of the AOJ's attempts to locate his service treatment records as well as any further action to be taken. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current left ankle disability. Specifically, the examiner should opine as to whether it is at least as likely as not that the Veteran currently has a left ankle disability that manifested in service or is otherwise causally or etiologically related to his military service. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, to include the Veteran's service treatment records, post-service medical records, and lay assertions, including the Veteran's assertions regarding injuring his left ankle in service, which the Board finds competent and credible. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the left ankle disability manifested in service or is otherwise casually or etiologically related to his military service, to include an in-service left ankle injury. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The Veteran should be afforded a VA examination to determine the nature and etiology of any current rheumatoid arthritis. Specifically, the examiner should opine as to whether it is at least as likely as not that the Veteran currently has rheumatoid arthritis that manifested in service or is otherwise causally or etiologically related to his military service. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, to include the Veteran's service treatment records, post-service medical records, and lay assertions, including the Veteran's assertions regarding injuring his left ankle in service, which the Board finds competent and credible. It should also be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the rheumatoid arthritis manifested in service or is otherwise casually or etiologically related to his military service, to include an in-service left ankle injury. Further, the examiner should also provide an opinion as to whether it is at least likely as not that any rheumatoid arthritis was caused or aggravated by the Veteran's left ankle disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. In the event that the Veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address and to his representative. It should also be indicated whether any notice sent was returned as undeliverable. 6. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 8. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These claims 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). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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).