Citation Nr: 1807173 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-27 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a compensable rating for service-connected chronic tonsillitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. By way of background, the RO granted entitlement to service connection in June 1973 for chronic tonsillitis, originally claimed as a throat condition and later laryngitis. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes the Veteran is service-connected for schizophrenia with a 100 percent disability rating effective from March 4, 2009, and that disability is not under appeal here. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court of Appeals for Veterans Claims' (CAVC) decision in Bradley v. Peake recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). Bradley v. Peake, 22 Vet. App. 280 (2008). Per Board policy, then, the issue of TDIU is referred to the RO to adjudicate in the first instance, as noted at the end of this Introduction. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran has applied for but was denied SMC based on aid and attendance/housebound in an August 2017 rating decision. 38 U.S.C. §§ 1114; 38 C.F.R. § 3.350. Because the Veteran is still within his statutory appeal period, the Board will not infer the issue of entitlement to SMC at this time. The issue of TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's claim for a compensable rating for his throat disability has not been evaluated in a VA examination suitable for rating purposes since November 2010. Additionally, the Board notes in that examination that the Veteran's complete claims file was not reviewed. As such, remand for a new VA examination and opinion is necessary. Because the Veteran has been in receipt of Social Security disability compensation at least since 2000 and possibly earlier, the Board notes that there are potentially relevant outstanding records from the Social Security Administration (SSA) which need to be obtained and associated with the claims file. The file contains only a reference that the Veteran receives Social Security disability payments. VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Those records should be requested, and associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. 2. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 3. After completion of the above, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected throat disabilities. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted. The examiner should describe the nature and extent of all of the Veteran's service-connected throat disabilities. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).