Citation Nr: 1814455 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 14-10 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for liver disease, to include as secondary to service-connected coccidioidomycosis. 2. Whether new and material evidence has been received to reopen a claim for service connection for chronic intermittent musculoskeletal pains and arthritis in feet, legs, arms, and neck, including as secondary to service-connected coccidioidomycosis. 3. Entitlement to a compensable rating for service-connected coccidioidomycosis. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: J. Bryan Jones, III, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to September 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In August 2017, the Veteran testified at his Board hearing that he received treatment from several different VA treatment centers as well as a private provider in Atlanta, Georgia, and New Orleans, Louisiana. Specifically, the Veteran stated that he attended VA treatment centers in Portland, Oregon, Washington, D.C., and Long Beach, California. In addition, the Veteran stated that when he moved to Atlanta, Georgia, around 2000 to 2001, he was treated by a physician named Dr. Parker, and that he was currently treated by a physician named Dr. Bouchais. The Board notes that the record contains treatment records from these VA treatment centers as well as Dr. Parker noted above. In correspondence dated November 2017, the Veteran's representative requested an additional 45 days to obtain further evidence including a possible evaluation. Additional evidence was not added to the file; however, there was also no correspondence stating that there was no additional evidence to submit. Thus, as the record suggests that there may be additional evidence and the Veteran's representative has not made any further statements that he was unable to locate these files, the RO must make attempts to obtain additional VA treatment records from Portland, Oregon, Washington, D.C., and Long Beach, California, as well as additional private treatment records from Dr. Parker in Atlanta, Georgia, and Dr. Bouchais in New Orleans, Louisiana. If the RO is unable to obtain the named records, a Memorandum of Formal Finding of Unavailability must be prepared, which complies with the notice VA is required to provide the Veteran as outlined in VA regulations. See 38 C.F.R. § 3.159 (e) (2017). A copy of that memorandum must be associated with the Veteran's claims file, copies must be sent to the Veteran and his representative, and the Veteran and his representative must be given an adequate opportunity to respond. If any records received in conjunction with this remand reveal any connection between the Veteran's coccidioidomycosis, to include the medication he takes or has taken in the past for this condition, and his liver disease and chronic intermittent musculoskeletal pains and arthritis in feet, legs, arms, and neck, the RO must reopen the Veteran's claims based on new and material evidence of a nexus for service connection for liver disease, to include as secondary to service-connected coccidioidmycosis, and service connection for chronic intermittent musculoskeletal pains and arthritis in feet, legs, arms, and neck, including as secondary to service-connected coccidioidmycosis. If found, this new and material evidence would trigger VA's duty to assist the Veteran by affording him an appropriate VA examination to determine the etiology of the Veteran's liver disease and chronic intermittent musculoskeletal pains and arthritis in the feet, legs, arms, and neck. The Board notes that the Veteran submitted medical literature in March 2014 which discussed coccidioidomycosis, which may have both acute and chronic phases in its disseminated form; however, as these generic texts did not address the facts in the particular Veteran's own case, the Board finds that they do not raise a reasonable possibility of substantiating the claim. As such, this evidence cannot be considered new and material evidence for the purpose of reopening the claims. Further, regarding the Veteran's increased rating claim for his service-connected coccidioidomycosis, the Veteran was last afforded a VA examination for this in May 2010. As the examination is more than seven years old and as the Veteran continues to assert that his condition may be more severe since the prior examination, a VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As the claim for an increased rating for coccidioidmycosis is remanded for an additional VA examination, the claim for TDIU is therefore inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the issue of TDIU is also remanded. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these files, if possible. Specifically, make attempts to obtain any additional VA treatment records from medical centers in Portland, Oregon, Washington, D.C., and Long Beach, California. Also, make attempts to obtain any additional private treatment records from Dr. Parker in Atlanta, Georgia, and Dr. Bouchais, in New Orleans, Louisiana. Associate these records with the claims file. If any of the named records are unable to be obtained, the RO must inform the Veteran and his representative by preparing a Memorandum of Formal Finding of Unavailability, which complies with the notice VA is required to provide the Veteran under 38 C.F.R. § 3.159 (e). A copy of that memorandum must be associated with the Veteran's claims file, copies must be sent to the Veteran and his representative, and the Veteran and his representative must be given an adequate opportunity to respond. 2. Then, if records received in conjunction with this remand reveal a possible relationship between the Veteran's coccidioidomycosis, to include the medication he takes or has taken in the past for this condition, and his liver disease and chronic intermittent musculoskeletal pains and arthritis in feet, legs, arms, and neck, the RO must afford the Veteran the appropriate VA examination to determine the etiology of these conditions. The claims file and a copy of this remand should be made available to the examiner. The examiner should determine whether it is at least as likely as not (50 percent probability or higher) that the coccidioidomycosis, to include the medication he takes or has taken in the past for this condition, caused or aggravated his liver disease and/or chronic intermittent musculoskeletal pains and arthritis in feet, legs, arms, and neck. The examiner should consider the Veteran's medical literature on this matter submitted in March 2014. The examiner should also consider these claims on a direct basis and determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's liver disease and/or chronic intermittent musculoskeletal pains and arthritis in feet, legs, arms, and neck, was incurred in or caused by service. If the examiner finds that these conditions are caused by service or caused or aggravated by his service-connected coccidioidomycosis, then the examiner is asked to determine the impact of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment. A complete rationale for all opinions must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, it must be so stated, and he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The Veteran should also be afforded a VA examination to determine the current nature and severity of his service-connected coccidioidomycosis. The claims file should be provided to the examiner in connection with the examination. The examiner shall conduct all indicated tests and studies and all clinical findings should be reported in detail. The examiner is also asked to determine the impact of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment. A complete rationale for all opinions must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, it must be so stated, and he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Then, the RO should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).