Citation Nr: 18157239 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-60 222 DATE: December 12, 2018 REMANDED Entitlement to an evaluation in excess of 30 percent for ulcerative colitis is remanded. Entitlement to an increased rating for headaches, currently evaluated as noncompensable prior to January 14, 2013 and 10 percent from January 14, 2013, is remanded. REASONS FOR REMAND The Veteran had active service from September 1986 to March 1987 and from March 1990 to July 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee. The November 2013 rating decision continued a 30 percent evaluation for ulcerative colitis and granted a 10 percent evaluation for headaches, effective January 14, 2013, the date of receipt of the claim for increase. The Veteran’s representative submitted a December 2013 notice of disagreement as to increased evaluations for ulcerative colitis and headaches and also indicated disagreement with the effective date assigned for headaches. Under 38 U.S.C. § 5110 (a), the effective date of an increase in a veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. However, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. Thus, the disagreement as to an earlier effective date for the grant of a 10 percent evaluation for headaches is in reality simply a continued claim for an increased rating prior to the grant of a 10 percent rating, as the rating period for consideration for the issue of an increased rating for headaches is from one year prior to January 14, 2013, the date of the receipt of the claim for increase, and therefore, the issue has been framed as a staged rating claim. However, to the extent the Veteran’s representative raised entitlement to an earlier effective date for grant of service connection itself, such is not on appeal as it would be an impermissible freestanding claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Additionally, review of the record reflects that in August 2018, the Veteran’s representative filed a VA Form 9, for an appeal regarding the issue of entitlement to service connection for chronic fatigue and in September 2018 he filed a VA Form 9 as to the issue of an increased evaluation for adjustment disorder with mixed anxiety and depressed mood. At present, VA Forms 8 are of record which reflects these issues have been certified to the Board for appellate disposition. However, certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. In this regard, the Veterans Appeals Control and Locator System indicates that the Agency of Original Jurisdiction (AOJ) may still be taking action on these issues as they remain in advance certification status. Further, when an appeal is certified to the Board for appellate review and the record is transferred to the Board, the Veteran and his or her representative, if any, will be notified in writing of the certification, that the appeal was placed on the Board’s docket, and transfer and of the time limit for requesting a change in representation and for submitting additional evidence. 38 C.F.R. §§ 19.36, 20.1304(a). As the complete required notifications have not been sent in regard to the VA Forms 9 filed in August 2018 and September 2018, the Board declines to take any further action on those issues at this time. This delay is needed to ensure that the Veteran is afforded full due process as to those matters. 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2017) (due process protections apply to disability compensation proceedings before the Board); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). Finally, the United States Court of Appeals for Veterans Claims has held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. In this case, although the record reflects the Veteran’s service-connected headaches and ulcerative colitis interfere with employment, he is currently employed, as documented most recently in an August 2018 mental disorders disability benefits questionnaire, as a supervisor in a quality control department. Therefore, the issue of entitlement to a TDIU is not raised in this case. 1. Entitlement to an evaluation in excess of 30 percent for ulcerative colitis is remanded. Additional relevant evidence developed by VA, to include VA treatments most recently dated in July 2018, was associated with the record subsequent to the most recent, November 2016, statement of the case issued, in part, as to the increased rating claim for ulcerative colitis. The Veteran did not waive AOJ review of this additional evidence. Thus, a remand for AOJ consideration of this evidence is warranted. Additionally, pursuant to the duty to assist, VA must obtain records of relevant medical treatment or examination at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran sufficiently identifies other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this regard, in a July 31, 2018 statement, the Veteran’s representative reported the Veteran continued to receive treatment for his ulcerative colitis and headaches and requested that all his records from the Miami VA Medical Center (VAMC) and Broward County VA Outpatient Clinic (OPC) be accessed in connection with his appeal. Additionally, an August 2018 statement of the case (SOC) issued for another claim, referenced review of VA treatment records not associated with the claims file. Specifically, the August 2018 SOC referenced review of VA treatment records from the Miami VAMC dated from August 29, 2008 through August 15, 2018. However, the record reflects the most the mostVA treatments associated with the claims file, from the Broward County OPC, part of the Miami VA Healthcare System, are dated July 9, 2018. Thus, on remand updated VA treatment records, from the Miami VA Healthcare System, since July 9, 2018 should be obtained and associated with the claims file. 2. Entitlement to a compensable evaluation prior to January 14, 2013 and in excess of 10 percent from January 14, 2013 for headaches is remanded. As described above, additional relevant evidence developed by VA, to include VA treatments most recently dated in July 2018, was associated with the record subsequent to the most recent, November 2016, statement of the case issued, in part, as to the increased rating claim for headaches. The Veteran did not waive AOJ review of this additional evidence. Thus, a remand for AOJ consideration of this evidence is warranted. Also, as described above, a remand is warranted to obtain updated VA treatment records from the Miami VA Healthcare System. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s updated treatment records since July 9, 2018, from the Miami VA Healthcare System, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Readjudicate the issues on appeal with review of all evidence received since the last prior adjudication of the Veteran’s claims. If any benefit sought is not granted, furnish the Veteran and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel