Citation Nr: 0007296 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-14 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for sarcoidosis currently evaluated as 60 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney at Law ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran has documented active service from October 1988 to March 1990. This appeal arises from a December 1995 decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). REMAND A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The veteran seeks an increased rating for his service- connected sarcoidosis and a total disability rating based on individual unemployability due to service-connected disability. Service connection and a 60 percent rating were established by a June 1990 rating decision. Examination and testing in June and July 1995 revealed that the sarcoidosis was in remission. A December 1995 rating decision states that the veteran was scheduled for further examination in December 1996 to determine whether the improvement was temporary or not. The file does not contain an examination report subsequent to July 1995. During the pendency of the veteran's appeal, the VA promulgated new regulations amending the rating criteria for non-tuberculous lung diseases, effective October 7, 1996. "[W]here the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to [the veteran] . . . will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The veteran has not been afforded an adjudication of his claim under the current criteria for non-tubercular diseases. The Board finds that the issue of entitlement to a total rating based on individual unemployability due to service- connected disability is inextricably intertwined with the issue of an increased rating for sarcoidosis; therefore, it too must be remanded. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). For the above reasons the case is REMANDED for the following: 1. The RO should contact the veteran and obtain the names and addresses of all medical care providers, VA and private, who have treated the veteran for sarcoidosis since June 1995. After securing the necessary releases, the RO should obtain these records. Any records received should be associated with the claims folder. 2. The RO should inquire of the veteran if he is employed. If he is not employed, it should be ascertained whether he is in receipt of Social Security Administration (SSA) Disability benefits. If the response is in the affirmative, the RO should obtain from SSA the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. The RO should schedule the veteran for a VA non-tubercular disease examination to determine the severity and extent of any pulmonary impairment. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The claims file, including a copy of the REMAND, should be made available to the examiner before the examination, for proper review of the medical history. The examination report is to reflect whether such a review of the claims file was made. The examiner is requested to comment on any cardiac involvement, with congestive heart failure, or cor pulmonale; fever, night sweats, weight loss, and whether the veteran is prescribed high or low dose or intermittent corticosteroids for control. Prior to the examination, the RO must inform the veteran, in writing, of all consequences of his failure to report for the examination in order that he may make an informed decision regarding his participation in said examination. 3. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to an increased evaluation for sarcoidosis in light of the new schedular criteria and the Court's holdings in Bernard v. Brown, 4 Vet.App. 384 (1993) and Karnas. They must also review the old criteria. The RO must explain to the veteran which criteria were used in rating the disability and why the selected criteria are more favorable to the veteran. 4. The RO should then readjudicate the issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disability. If the determination remains adverse, the veteran and his representative should be provided with a supplemental statement of the case and given the appropriate opportunity to respond thereto. Thereafter, the claims file, including the above requested evidence, should be returned to this Board for appellate review, if in order. No action is required by the veteran until he receives further notice. The purpose of this remand is to procure clarifying data. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the appeal. The appellant has the right to submit additional evidence and argument on the matter or matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).