Citation Nr: 1024149 Decision Date: 06/28/10 Archive Date: 07/08/10 DOCKET NO. 03-19 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint. 2. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 (2009) for hospitalization from November 2, 2006, to November 4, 2006. 3. Entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond May 1, 2007. 4. Entitlement to an effective date earlier than May 1, 2002, for the award of service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint. 5. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to April 2002. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint and assigned a 20 percent rating from May 1, 2002. The Veteran appealed the assignment of the 20 percent rating to the lumbar spine disability. In a March 2006 decision, the Board assigned an initial 40 percent rating to the service-connected degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint. A timely appeal of that decision was filed to the United States Court of Appeals for Veterans Claims (Court). In a December 2007 memorandum decision, the Court vacated the Board's decision which assigned a 40 percent rating to the service-connected degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint and remanded this issue to the Board for compliance with directives that were specified by the Court. A timely appeal of the December 2007 Court decision was filed to the United States Court of Appeals, Federal Circuit (Federal Circuit). In a May 2008 decision, the Federal Circuit affirmed the Court's December 2007 decision. Thus, the issue of entitlement to an initial rating in excess of 40 percent for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint was remanded to the Board for readjudication. During the pendency of the appeal of entitlement to a higher initial rating for the lumbar spine disability, the Veteran apparently perfected appeals of the issues of entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospitalization from November 2, 2006 to November 4, 2006; entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond May 1, 2007; and entitlement to an effective date earlier than May 1, 2002 for the award of service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint. See November 2008 VA Form 9 and the October 2008 Statement of the Case. The issues of entitlement to an initial rating in excess of 40 percent for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint; entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospitalization from November 2, 2006, to November 4, 2006; entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond May 1, 2007; and, entitlement to an effective date earlier than May 1, 2002, for the award of service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint, were remanded by the Board in January 2009. The Board notes that in a submission from the Veteran received in April 2010, the Veteran alleged clear and unmistakable error (CUE) in the denial of an increased rating for service-connected degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint, and the denial of entitlement to an earlier effective date for the grant of service connection for service- connected degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint. The issue of entitlement to an increased rating for service-connected degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint was remanded by the Court for readjudication, and a decision has not been issued by the Board to date. With regard to the issue of entitlement to an earlier effective date, such issue is currently in appellate status and has not been the subject of a Board decision. Thus, the Veteran's motions for CUE consideration are premature and not ripe. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND At the January 2010 VA examination, the Veteran reported that he is in receipt of Social Security Administration (SSA) disability benefits due to his lumbar spine disability. Thus, the Veteran's SSA records should be associated with the claims folder. During the pendency of the appeal of entitlement to a higher initial rating for the lumbar spine disability, the Veteran apparently perfected appeals of the issues of entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospitalization from November 2, 2006 to November 4, 2006; entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond May 1, 2007; and entitlement to an effective date earlier than May 1, 2002 for the award of service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint. See November 2008 VA Form 9 and the October 2008 Statement of the Case. In the January 2009 Board Remand, documentation was requested regarding these claims, to include the initial claim, rating decision, and notice of disagreement. Such documents were not associated with the claims folder, thus the Board is unable to proceed. The Court has held that a remand confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the Agency of Original Jurisdiction's (AOJ's) failure to further develop the claims as instructed, another remand is necessary. The AOJ must associate all pertinent documents with the claims folder and readjudicate these claims. TDIU A request for a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra- schedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also 38 C.F.R. § 3.321(b)(1) (providing for an extra-schedular disability when there is an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization). Service connection is in effect for multiple disabilities; however, currently his combined rating does not meet the percentage requirements of § 4.16(a). In statements received from the Veteran in October 2008, the Veteran asserts that he has submitted medical evidence showing that he is unemployable due to service-connected disabilities, and he asserts that he filed a TDIU claim subsequent to the Board's March 10, 2006 decision. Likewise, at the January 2010 VA examination, the Veteran seems to assert that he is unemployable due to his service-connected lumbar spine disability, and as detailed, he is apparently in receipt of SSA disability benefits due to such lumbar spine disability. Initially, all documentation associated with the Veteran's claim for a TDIU should be associated with the claims folder, to include any VA Form 21-8940 received. Then, the Veteran should be afforded a VA examination to assess whether his service-connected disabilities constitute marked interference with employment, or affects his ability to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a), (b). In light of this matter being remanded, updated VA treatment records should be obtained from the North Texas Healthcare System for the period June 17, 2009, to the present. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain the entirety of the Veteran's SSA records. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Updated treatment records from the North Texas Healthcare System should be associated with the claims folder for the period June 17, 2009, to the present. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 3. Documentation regarding the issues of entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospitalization from November 2, 2006, to November 4, 2006; entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond May 1, 2007; and, entitlement to an effective date earlier than May 1, 2002, for the award of service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint, must be associated with the claims folder, to include the initial claim(s), rating decision(s), notice of disagreement(s), statement(s) of the case, substantive appeal(s), supplemental statement(s) of the case, duty to notify and assist letter(s), and all other pertinent documents. 4. Documentation regarding his claim for a TDIU, to include any VA Form 21-8940, should be associated with the claims folder. 5. The Veteran should be scheduled for a VA examination to assess the severity of his service-connected disabilities. The examiner should provide an opinion concerning the impact of the Veteran's service-connected disabilities (degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint; degenerative joint disease, right elbow with olecranon bursitis; tinnitus; degenerative joint disease, left forefoot, with hallux valgus and strain; bilateral hearing loss; hypertension; residuals of laceration, left long finger; residuals of laceration, scar, right long finger; residuals of laceration, left index finger) on the Veteran's ability to work. The examiner should attempt to distinguish the impairment related to his service-connected disabilities, and other nonservice-connected disabilities. The examiner should provide supporting rationale for this opinion. 6. After completion of the above, the AOJ should review the expanded record and readjudicate the claims of entitlement to an increased rating for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint; entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospitalization from November 2, 2006, to November 4, 2006; entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond May 1, 2007; and, entitlement to an effective date earlier than May 1, 2002, for the award of service connection for degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint, and the AOJ should adjudicate the claim of entitlement to a TDIU. If any benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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 Supp. 2009). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).