Citation Nr: 18154762 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-45 120 DATE: December 4, 2018 REMANDED The claim of entitlement to a disability rating in excess of 10 percent for irritable bowel syndrome and functional dyspepsia with history of gastroesophageal reflux disease (hereinafter “IBS”) is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is also remanded for additional development. Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from May 1984 to April 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in her December 2015 substantive appeal (VA Form 9), the Veteran did not indicate as to whether she wished for a hearing before the Board. As the instant claims are remanded herein, the Veteran will have the opportunity to request a hearing, if she so wishes, while this appeal is on remand. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. In this case, in the June 2015 notice of disagreement (NOD), the Veteran stated that her service-connected IBS disability affects her ability to sustain gainful employment. 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 she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Missing Records The Board finds that the Veteran’s service personnel records are missing from her claims file, including her DD Form 214, Certificate of Release or Discharge from Active Duty. Thus, on remand, an exhaustive search for the Veteran’s missing service personnel records should be undertaken, and the Veteran should be notified of all unavailable records. Increased Rating Claim The Veteran contends that she is entitled to an increased rating for her service-connected IBS disability. The record reflects that the Agency of Original Jurisdiction (AOJ) addressed this issue in an October 2015 statement of the case (SOC). Since the October 2015 SOC, a VA examination was conducted for the Veteran’s service-connected IBS in August 2018. However, the AOJ has not issued a supplemental statement of the case (SSOC) addressing this issue 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 IBS claim must be remanded to allow for AOJ consideration of the new medical evidence. Entitlement to TDIU As the Veteran’s claim for a TDIU is inextricably intertwined with the current increased rating claim, the Board also remands the claim for entitlement to a TDIU, as it must be held in abeyance pending adjudication of the increased rating claim. 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). Additionally, on remand, the Board finds that clarification is needed with regard to the Veteran’s employment history and current status. The Veteran asserts that she has difficulty with her employment and has missed time from work due to her service-connected IBS disability. See June 2015 NOD; August 2018 VA examination report. The record reflects that, to date, the Veteran has not provided a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board notes that the August 2018 VA examination report indicates that the Veteran is employed full-time as a human resources specialist. However, it is not clear whether the Veteran continues to be employed as a human resources specialist, and, if so, whether it would be deemed employment or marginal employment. As such, the Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran’s current employment and income. 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 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. If any record identified cannot be obtained, the Veteran and her 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 herself. 2. Obtain the Veteran’s completed service personnel records, including any missing DD Form 214. If unavailable, produce a memorandum of unavailability. 3. Provide the Veteran and her representative with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, so as to afford the Veteran with an opportunity to provide a description of her employment history. 4. 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 her 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 October 2015. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel