Citation Nr: 21027450 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-15 504 DATE: May 5, 2021 REMANDED Entitlement to an initial compensable rating for chronic renal insufficiency is remanded. Entitlement to a total individual unemployability disability (TDIU) rating is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1964 to July 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran provided testimony before the undersigned Veterans Law Judge by videoconference hearing. 1. Entitlement to an initial compensable rating for chronic renal insufficiency. Service connection for renal insufficiency was established based on the finding that it aggravated by his service-connected diabetes mellitus type II (DM II). Section 3.310(b) applies to the aggravation of nonservice-connected disabilities by disabilities that have been service-connected. Specifically, it allows for any increase in severity of a nonservice-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury to be service connected. VA will not automatically concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury. Instead, the baseline level of severity of the nonservice-connected disease or injury must either first be established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Following this determination, the rating activity will ascertain the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4). Thereafter, the rating activity will determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The RO granted the Veteran's chronic renal insufficiency as it had been aggravated by his service-connected DM II in March 2017. In applying 38 C.F.R. § 3.310 (b), the RO determined that, historically, per treatment records, the Veteran's chronic renal insufficiency had a baseline equivalent to a 60 percent rating prior to aggravation and current symptomatology equivalent to a 60 percent rating. The RO then deducted the baseline from his current symptoms, and determined that the Veteran was entitled to a noncompensable rating throughout the appeal. That said, on Board hearing, the Veteran reported receiving private care for his service-connected disabilities throughout the period on appeal. The claims file contains incomplete records as to the Veteran's private care. There are only scattered records from 2018 to 2020 and a gap in records between 2009 and 2018. The RO has not requested these outstanding records. These earlier records are crucial to establishing the baseline of the Veteran's renal disability, i.e. the severity of the Veteran's disability throughout the appeal. While on remand, the RO should also obtain all VA treatment records prepared since 2013 as they are not of record. 2. Entitlement to a TDIU. A claim for a TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). The Veteran reported that the severity of his renal insufficiency resulted in his unemployability. Specifically, his condition became so greatly impairing that he was no longer able to handle the physical rigors associated with his employment as a surgeon. Given these assertions, TDIU is raised by the record. As the issue of a TDIU is predicated on the Veteran's renal insufficiency it is inextricably intertwined with the pending claim for increased rating and adjudication must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Remanding this claim also allows the RO to provide notification to the Veteran of the requirements for a TDIU and for the Veteran to file a formal application for this benefit. The matters are REMANDED for the following action: 1. Provide the Veteran and his attorney with notification of how claims for a TDIU may be substantiated. Also, provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran and his representative are specifically notified that the information in the VA Form 21-8940 is essential to proper adjudication of his TDIU claim, and that a failure to return that form or to provide the requested information may result in a denial of the claim. 2. Obtain all outstanding private and VA treatment medical records. The Veteran confirms receiving private treatment for his renal insufficiency throughout the period on appeal. (a.) Note: The Veteran reports receiving private treatment at Millennium Physician Group. (b.) Note: The Veteran reports receiving treatment at VA Bay Pines. The claims file is negative for VA treatment medical records from 2013 forward. (c.) All attempts to obtain outstanding records should be documented in the claims file. In the event that such records are deemed unavailable for review, the Veteran and his representative should be informed of that fact and afforded an opportunity to submit any outstanding records on his own behalf. 3. Contact the Veteran and afford him the opportunity to address the RO's determination as to his baseline level of chronic renal insufficiency prior to aggravation. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.