Citation Nr: 1821925 Decision Date: 04/13/18 Archive Date: 04/25/18 DOCKET NO. 14-15 300A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a higher initial evaluation for systemic lupus erythematosus, evaluated as 10 percent disabling prior to March 18, 2014 and 60 percent since that date. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from April 2007 to September 2007 and from June 2009 to May 2010 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for an undifferentiated autoimmune disease. A 10 percent rating was assigned for this disability, effective from the Veteran's date of discharge on May 6, 2010. The Veteran submitted a notice of disagreement with this evaluation in October 2010 which initiated the current appeal. During the course of the appeal, the diagnosis of the Veteran's disability was changed to systemic lupus erythematosus. The evaluation for the Veteran's disability was increased to 60 percent, effective March 18, 2014. The Veteran has confirmed that she is not satisfied with either the evaluation or its effective date. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the matter remains on appeal since the date of service connection, and a separate appeal track for an earlier effective date for assignment of the 60 percent rating or an increased rating for the period prior to March 18, 2014 is not necessary. Finally, the Board recognizes that a claim for an increased rating encompasses a claim for TDIU if raised by the record or the Veteran. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has raised a claim for TDIU, and it is therefore part of the current appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that the initial ratings assigned for her systemic lupus erythematosus are insufficient to reflect the impairment resulting from this disease. She notes that she lost her career with the military due to this disease and that it results in constant pain and fatigue. She states that she experiences several exacerbations every month and believes a 100 percent rating dating from her date of discharge is appropriate. A review of the claims file shows that the most recent VA treatment records that have been obtained are dated February 2015. Given that the evaluation of the Veteran's disability depends to a great extent on the frequency of exacerbations, and given that the Veteran claims to experience exacerbations on a monthly basis or more, the Board finds that up to date treatment records are vital to the evaluation of this disability. See 38 C.F.R. § 4.88b, Code 6350. Therefore, the Veteran's current VA treatment records should be obtained and associated with the claims file, with a special effort made to obtain all rheumatology consultations for this period. Similarly, a review of the treatment records already in the claims file shows that the Veteran was provided frequent consultations with the rheumatology department at a VA facility through 2011 and again during 2013. However, the only VA treatment records pertaining to the Veteran for 2012 appear to be X-ray studies and physical therapy records; there are no rheumatology consultations for this year. An attempt should be made to obtain all VA rheumatology consultations for 2012 and associate them with the claims file. Finally, the most recent VA examination of the Veteran's disability was conducted in March 2015. This examination is now three years old and of course will be even older before the requested VA records are obtained. The Veteran should be scheduled for a new VA examination of this disability. The Veteran's only service connected disability is her systemic lupus erythematosus. Therefore, her claim for TDIU is inextricably intertwined with the claim for an increase rating. As the claims must be considered together, further consideration of the claim for TDIU is deferred. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any private treatment she might continue to receive for her systemic lupus erythematosus. After receiving the necessary permission, obtain these records and associate them with the claims file. The Veteran should be notified that in the alternative, she may obtain these records and submit them to VA on her own. Additionally, request that the Veteran complete a VA Form 21-8940 regarding the TDIU matter. 2. Obtain all VA treatment records pertaining to the treatment of the Veteran's systemic lupus erythematosus from February 2015 to the present and associate them with the claims folder. An emphasis should be placed on obtaining any and all rheumatology consults during this period. Similarly, records of all VA rheumatology consultations for 2012 should be obtained and associated with the claims file. If any portion of these records are unavailable or do not exist, this should be documented in the claims file. 3. After completing the records development, schedule the Veteran for a VA examination of his systemic lupus erythematosus. The claims file should be provided to the examiner, and the examination report should reflect that it has been reviewed. All indicated tests and studies should be conducted. This should include range of motion studies for all affected joints as well as a skin examination. The examiner is to comment on the effect of the service-connected systemic lupus erythematosus on the Veteran's ability to function in an occupational environment and describe any identified functional limitations. 4. Afterwards, the RO should again review the record and readjudicate. If any benefit sought on appeal remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).