Citation Nr: 0002537 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 97-11 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from June 1979 to August 1982. This appeal arises from an October 1994 rating decision of the Columbia, South Carolina, regional office (RO) which denied entitlement to a total disability evaluation based upon individual unemployability. This matter was Remanded by the Board of Veterans' Appeals (Board) in September 1998 for the purpose of obtaining additional medical evidence, and it has been returned to the Board for appellate review. REMAND In its September 1998 Remand, the Board requested that the veteran be afforded VA examinations to determine the severity of his service-connected chronic sinusitis with allergic rhinitis and eczema with history of urticaria. The examiners were also asked to address the "veteran's capacity for gainful employment" based solely on impairment due to his service-connected disabilities. See Friscia v. Brown, 7 Vet. App. 294 (1995). The report of the veteran's July 1999 VA sinus examination contained no commentary on the effect his chronic sinusitis with allergic rhinitis had on his ability to secure and/or maintain gainful employment. Similarly, while the veteran was noted to have given a history of quitting a job at Winn Dixie due to an exacerbation of his service-connected skin condition, the dermatological examiner failed to address what type of employment activities would be limited by the veteran's eczema with history of urticaria. To this, the RO is advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the veteran must be afforded VA otolaryngology, dermatology, and pulmonary examinations to properly determine the severity of his service-connected chronic sinusitis with allergic rhinitis, eczema with history of urticaria, and asthma and what type of employment activities would be limited by those disabilities. Although he has been examined previously for VA purposes, the importance of the new examinations to ensure adequate clinical findings should be emphasized to the veteran. The veteran is henceforth advised that failure to report, without good cause, for an examination scheduled in connection with a claim for an increased rating or a total disability evaluation based upon individual unemployability may result in denial of that claim. 38 C.F.R. § 3.655 (1999). Further, as referenced above, VA has a duty to assist the veteran in the development of facts pertinent to his claim. The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining treatment records to which the veteran has referred. See Littke v. Derwinski, 1 Vet. App. 90 (1990). Thus, as this matter is being Remanded for additional VA examinations, the RO should obtain the veteran's current medical records pertaining to the treatment of his service-connected chronic sinusitis with allergic rhinitis, eczema with history of urticaria, and asthma. The Board also notes that the record contains references to the veteran receiving vocational rehabilitation training. The veteran's Chapter 31 file should also be obtained and included with the claims folder. Finally, during the course of this appeal, the veteran raised the claim of service connection for hives and a chronic sinus disorder. By a rating action dated in August 1995, the RO assigned a 10 percent disability evaluation for chronic sinusitis with allergic rhinitis and a noncompensable disability evaluation for eczema with history of urticaria, after granting service connection for the same. The veteran received notice of this decision on August 10, 1995. In a statement received in November 1995, the veteran indicated that he had received notice of the August 1995 decision, and that he was "appealing the decisions" pertaining to his hives and the cysts in his nose. The Board construes this a notice of disagreement with the ratings assigned the veteran's service-connected chronic sinusitis with allergic rhinitis and eczema with history of urticaria. To date, there is no evidence that the appellant has been furnished a Statement of Case on either of these issues. As the filing of a notice of disagreement places a claim in appellate status, the Court has held that the RO's failure to issue a Statement of the Case is a procedural defect requiring remand. See Manlincon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 5 Vet. App. 127, 132 (1993). Although further delay is regrettable, under the circumstances described above, additional development is considered necessary. Therefore, this case is Remanded to the RO for the following development: 1. The RO should obtain the names and addresses of all VA and non-VA medical care providers who have treated the veteran for his service-connected chronic sinusitis with allergic rhinitis, eczema with history of urticaria, and/or asthma since January 1996. All records not already incorporated in the claims folder should be obtained, to include those from the Dorn VA Medical Center and any other identified VA medical facility. Once obtained, all records must be associated with the claims folder. 2. The veteran's Chapter 31 (Vocational Rehabilitation) file should be obtained and included with the claims folder. 3. The RO should schedule the veteran for special VA otolaryngology, dermatology, and pulmonary examinations. The veteran should be properly notified of the date, time and place of the examinations in writing. A copy of the notification letter should be associated with the claims file. The claims folder must be made available to the examiners for review prior to the examination. Such tests as the examiners deem necessary should be performed, to include the requisite pulmonary function tests used to evaluate asthma. Findings necessary to rate the identified service- connected disabilities should be set forth in detail. The examiners should also describe what type of employment activities would be limited by the veteran's service-connected disability(ies) and whether or not sedentary employment would be feasible. The reasons and bases for all conclusions should be provided. 4. The RO should furnish the veteran and his representative with a Statement of the Case (SOC) on the issues of entitlement to an evaluation in excess of 10 percent for chronic sinusitis with allergic rhinitis, on appeal from the initial evaluation, and entitlement to a compensable evaluation for eczema with history of urticaria, on appeal from the initial evaluation. The RO's attention is directed to Fenderson v. West, 12 Vet. App. 119 (1999). The SOC should thoroughly discuss all evidence received since the August 1995 decision including the findings of the July 1999 VA specialty examinations. The SOC should include citations to all pertinent regulations. There should also be included with this document information concerning the need to file a substantive appeal to these issues if the Board is to address them. A VA Form 9 should be provided for the veteran's use. The veteran must be informed that he must file a substantive appeal to the SOC if he wishes the Board to consider the issues addressed therein. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 6. When the above developments have been completed, the case should be reviewed by the RO. If the decision remains adverse to the veteran, he and his representative should be issued a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond. The SSOC should include citation to all relevant regulatory provisions. If appropriate, the SSOC should also include the provision of 38 C.F.R. § 3.655. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to afford due process and to obtain additional medical evidence. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. 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. BARBARA B. COPELAND 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).