Citation Nr: 21032165 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 99-13 825 DATE: May 26, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to January 15, 2014, and in excess of 40 percent thereafter, for service-connected peripheral neuropathy, all radicular groups, right upper extremity is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 15, 2014, and in excess of 30 percent thereafter, for service-connected peripheral neuropathy, all radicular groups, left upper extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to August 16, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to January 1971. In July 2007, the Veteran testified before a Veterans Law Judge via videoconference; a transcript of the hearing has been associated with the record. In February 2021, the Veteran was informed that the Veterans Law Judge who held the July 2007 hearing was no longer employed by the Board, and he was given an opportunity to appear at another hearing. 38 C.F.R. § 20.604 (2020). The letter informed the Veteran that, if no response was received in 30 days, the Board would assume he did not want another hearing. The Veteran has not responded to the letter; therefore, no further action concerning a Board hearing in necessary. The Veteran's appeal was previously before the Board in June 2019, at which time an increased rating of 40 percent was awarded to the Veteran's service-connected peripheral neuropathy, right upper extremity, effective January 15, 2014; and an increased rating of 30 percent was awarded to the Veteran's service-connected peripheral neuropathy, left upper extremity, effective January 15, 2014. In doing so, the Board denied initial ratings in excess of 10 percent prior to January 15, 2014, for both upper extremities, as well as ratings in excess of the 40 percent and 30 percent assigned to both upper extremities. Insofar as the Board denied initial ratings in excess of 10 percent prior to January 15, 2014, for both upper extremities, as well as ratings in excess of 40 percent and 30 percent for both upper extremities from January 15, 2014, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the parties to the action submitted a Joint Motion for Partial Remand (JMPR) which was adopted by the Court in an Order issued in August 2020. In the JMPR, the parties agreed that the Board's decision to award increased ratings of 40 percent and 30 percent to the Veteran's bilateral upper extremities, effective January 15, 2014, should not be disturbed. 1. Peripheral Neuropathy In the January 2020 JPMR, the parties agreed that the Board erred by failing to explain whether VA had satisfied its duty to assist by obtaining treatment records referenced in the Veteran's VA treatment records as having been scanned into VA's VistA imaging system. The JMPR noted that the scanned documents included the following: a February 2005 VA Non-VA record noting that Emergency Room Notes from June 1, 2004, were scanned; an August 27, 2011, VA primary care note reporting that there were scanned documents in VistA imaging; a January 14, 2017, non-VA note reporting that records from Southeastern Ohio Regional Medical Center for April 18, 2015, were scanned; a May 20, 2016, non-VA note reporting that records from Ohio Health Orthopedic from September 1, 2015, were scanned; May 6, 2016, and April 20, 2016, non-VA notes reporting that records from Coshocton Co Mem Hospital dated April 5, to April 14, 2016, and from March 1, to March 29, 2016, were scanned; a September 22, 2015, non-VA note reporting that records from Grant Medical Center dated September 2, to September 5, 2015, were scanned; July 1 and July 22, 2015, scanned Non VA medical records; September 20, 2015, December 23, 2015, and January 6, 2016, notes that January, June, and August 2016, notes were scanned; April 5, 2016, note reporting that a record from July 26, 2016, was scanned; December 3, 2013, physical therapy notes for peripheral neuropathy were scanned. Thus, on remand, the agency of original jurisdiction (AOJ) should ensure that all medical records that have been scanned into VA's VistA imaging system are associated with the claims file. Additionally, the AOJ should associate with the record any outstanding VA treatment records. Records dated through May 17, 2018, are currently of record. Finally, the Veteran should be provided the opportunity to identify any private treatment records that are relevant to his appeal and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. 2. TDIU As noted in the August 2020 JMPR, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Here, a claim of entitlement to a TDIU has been raised by the Veteran. Specifically, in September 2013, he filed a formal claim for a TDIU arguing that he stopped working in 1991 due to his service-connected posttraumatic stress disorder and peripheral neuropathy. See September 2013 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Thus, the Board has jurisdiction over this issue as part and parcel of his claims for increased ratings for his service-connected bilateral upper extremity peripheral neuropathy and has listed such on the title page. In an April 2017 rating decision, the AOJ awarded a TDIU, effective August 16, 2010. However, pursuant to Harper v. Wilkie, an award of TDIU prior to August 16, 2010, is still pending in conjunction with his claims for increased ratings. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the AOJ grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). The Veteran's claim for a TDIU is inextricably intertwined with his claims for increased ratings. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of that issue at this time. The matters are REMANDED for the following action: 1. Associate with the claims file any VA treatment records dated from May 17, 2018, to the present. 2. Ensure that all medical records that have been scanned into VA's VistA imaging system are associated with the claims file. These records include, but are not limited to, the following: a February 2005 VA Non-VA record noting that Emergency Room Notes from June 1, 2004, were scanned; an August 27, 2011, VA primary care note reporting that there were scanned documents in VistA imaging; a January 14, 2017, non-VA note reporting that records from Southeastern Ohio Regional Medical Center for April 18, 2015, were scanned; a May 20, 2016, non-VA note reporting that records from Ohio Health Orthopedic from September 1, 2015, were scanned; May 6, 2016, and April 20, 2016, non-VA notes reporting that records from Coshocton Co Mem Hospital dated April 5, to April 14, 2016, and from March 1, to March 29, 2016, were scanned; a September 22, 2015, non-VA note reporting that records from Grant Medical Center dated September 2, to September 5, 2015, were scanned; July 1 and July 22, 2015, scanned Non VA medical records; September 20, 2015, December 23, 2015, and January 6, 2016, notes that January, June, and August 2016, notes were scanned; April 5, 2016, note reporting that a record from July 26, 2016, was scanned; December 3, 2013, physical therapy notes for peripheral neuropathy were scanned. 3. Give the Veteran additional opportunity to submit or identify any outstanding evidence pertinent to his claims on appeal. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 4. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and he must be allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All records and/or responses received should be associated with the record. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. Rebecca N. Poulson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.