Citation Nr: 18149841 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 17-42 227 DATE: November 14, 2018 REMANDED The claim of entitlement to a disability rating in excess of 20 percent for gout of the bilateral feet is remanded. The claim of entitlement to service connection for a back disability is remanded. The claim of entitlement to service connection for a left shoulder disability is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is also remanded for additional development. Preliminary Matters The Veteran had active duty service with the United States Navy from August 1979 to August 1999. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case, in a statement received in January 2015, the Veteran stated that he had been out of work since November 25, 2014, suggesting that his service-connected gout prevented him from working. The Board of Veterans’ Appeals (Board) interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Increased Rating Claim The Veteran contends that he is entitled to an increased rating for his service-connected gout of the bilateral feet. The record reflects that the Agency of Original Jurisdiction (AOJ) addressed this issue in a July 2017 statement of the case (SOC). Since the July 2017 SOC, an examination with the Department of Veterans Affairs (VA), detailed in a Disability Benefits Questionnaire (DBQ), was conducted for the Veteran’s service-connected gout of the bilateral feet in October 2018. However, the AOJ has not issued a supplemental statement of the case (SSOC) since receipt of this additional evidence. A SSOC must be furnished to the claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran. 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 that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration). As noted above, this provision only applies to evidence submitted by the Veteran. Therefore, the issue must be remanded to allow for AOJ consideration of the new medical evidence. Service Connection Claims The Veteran also contends that he is entitled to service connection for a back disability and a left shoulder disability. The record reflects that the Veteran has been diagnosed with degenerative joint disease (DJD), chronic discopathy, and osteoarthritis of the lumbar spine. See July 2015 private treatment record. In addition, the record reflects that the Veteran has been diagnosed with DJD of the left shoulder. See id. The Veteran was afforded a VA examination for his claimed back and left shoulder disabilities in May 2014. If VA undertakes to provide an examination, the examination must be adequate. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). During the examination, the Veteran reported that he was hit by a drunk driver during his active service, suggesting that his claimed back and left shoulder disabilities were, in part, a result of this motor vehicle accident (MVA). The examiner noted that a review of the Veteran’s file did not reveal any notations for in-service treatment of the Veteran’s back or left shoulder. The examiner opined that neither disability was related to the Veteran’s active service. The Board finds that the examiner’s opinion for both the claimed back disability and left shoulder disability is inadequate, as it lacks a clear medical rationale in relying solely on the absence of documentation to rule out a nexus. Thus, the Board finds that an adequate opinion for either claimed disability is not of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board acknowledges that in a July 2015 private treatment record, Dr. P.Y. opined that the Veteran’s back and left shoulder disabilities were a result of the reported MVA sustained during his active service. A review of the claims file reveals no service treatment notes related to this reported MVA. The Board finds that without verification of this alleged MVA during service, the opinion of Dr. P.Y. has limited probative value. As will be discussed below, the Board will remand for the AOJ to take appropriate action in locating any missing service records, including records related to the alleged MVA. Additionally, the Veteran has stated his belief that the May 2014 VA examination was inadequate, as the examiner did not thoroughly evaluate his back or left shoulder. See August 2017 VA Form 9. Therefore, in light of the foregoing, the Board finds that remand for a VA examination for each claimed disability is necessary. Entitlement to TDIU The Board finds that the issue of the Veteran’s entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Accordingly, the issue of entitlement to a TDIU must be held in abeyance pending adjudication of the aforementioned claims. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are “inextricably intertwined” where action on one matter could have a “significant impact” on the other). Missing Records The record reflects that there may be outstanding service treatment records related to the Veteran’s claimed back and left shoulder disabilities. As previously stated, the Veteran has reported that he was in a MVA during his active service. See May 2014 VA examination report. The record further reflects that he received in-service treatment, to include hospital treatment, for injuries sustained to the neck, back, and left shoulder as a result of the MVA. See July 2015 private treatment record. Review of the Veteran’s claims file indicates that these records have not been obtained. The Board is aware that typically, in-patient treatment records are archived separate and apart from service treatment records. To date, there has been no attempt to determine whether the reported in-patient records of hospitalization exist. Therefore, upon remand, action should be taken to request and associate with the file any service hospital records concerning the Veteran. Furthermore, it appears that there may be outstanding service personnel records relating to the Veteran’s periods of active service. The claims file contains an enlistment examination report and a report of medical history, both dated August 21, 1979. In addition, the claims file contains re-enlistment examination reports dated March 23, 1982, and June 23, 1988. However, the only DD Form 214, Certificate of Release or Discharge from Active Duty, is for the period from August 1988 to August 1999. Accordingly, on remand, the AOJ should obtain the Veteran’s DD Form 214 for all periods of service. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The Board notes that the most recent VA medical records associated with the claims file are from 2016. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. In addition, take all appropriate action to obtain records of any in-patient hospitalization during service. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Obtain the Veteran’s completed service personnel records, specifically any missing DD Form 214. If unavailable, produce a memorandum of unavailability. 3. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should address the Veteran’s reports of pain and opine on whether pain causes functional impairment. The examiner should discuss the effect of the claimed back disability on the Veteran’s occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left shoulder disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should address the Veteran’s reports of pain and opine on whether pain causes functional impairment. The examiner should discuss the effect of the claimed left shoulder disability on the Veteran’s occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran’s claims should be readjudicated, to include the issue of entitlement to a TDIU, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issues on appeal, the SSOC should consider any new evidence received since the SOC issued in July 2017. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel