Citation Nr: 1127457 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 07-15 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating greater than 20 percent for traumatic arthritis of the lumbar spine. 2. Entitlement to an increased rating greater than 10 percent for osteoarthritis of the left hip. 3. Entitlement to an increased rating greater than 10 percent for osteoarthritis of the right hip. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1965 to September 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The Veteran had a hearing before the Board in February 2008 and the transcript is of record. The Board received additional evidence from the Veteran in July 2010 after the file was certified to the Board. A supplemental statement of the case (SSOC) was not issued, but this is not necessary since the Veteran had previously submitted a March 2010 signed waiver of local jurisdictional review of any and all new evidence that had been or would be submitted to the Board that was not previously reviewed by the RO. The case was brought before the Board in September 2008, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of TDIU is inferred in increased rating claims where the Veteran claims his disability affects his employability. The Board finds that the Veteran has indicated occupational impairment due to his service connected disabilities throughout this appeal. Accordingly, an inferred claim is applicable in accordance with Rice. Id. The issue of TDIU is appropriately indicated above. It is noted that all of his service-connected disabilities are currently on appeal. 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 on his part. REMAND The Veteran previously indicated in an October 2003 statement that he was in receipt of Social Security Administration (SSA) disability benefits. During his February 2008 hearing before the Board, he again indicated he was in receipt of SSA disability benefits for arthritis and a respiratory condition. He also testified that the VA already had his SSA records. On review of the claims folder, however, the Board concludes these SSA records are not currently in the claims folder. The U.S. Court of Appeals for Veterans Claims has held that, where VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). Furthermore, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), emphasizes the need for VA to obtain records from other Government agencies. See 38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 2002). Under the circumstances presented here, the RO should request the Veteran's SSA medical records in conjunction with his application for benefits and award thereof, to the extent they exist. Lumbar Spine The Veteran indicates his low back disability causes him to be wheelchair bound, results in radicular pain to his bilateral legs and cause several weeks of incapacitating episodes each year. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded VA examinations in June 2006, January 2007 and, most recently, in November 2009, nearly two years ago, for his low back. In 2006 and 2007, the Veteran did not complain of radiating pain to his lower extremities. Although incapacitating episodes were indicated, the examiners at those times indicated bed rest had not been ordered by a physician. In contrast, in 2009, the VA examiner noted a positive straight leg test with complaints of radicular pain to the lower extremities. Further neurological testing, however, was not conducted. The examiner also indicated that the Veteran had been prescribed bed rest for incapacitating episodes over the last 12 months, but did not specify how many weeks were prescribed. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are to be rated separately under appropriate diagnostic code. See 38 C.F.R. §4.71a, Diagnostic Codes 5235-5242. In this case, it does not appear the RO considered whether the Veteran is entitled to separate ratings for neurological manifestations noted in the 2009 VA examination. It also does not appear the Veteran was afforded a neurological examination to ascertain the nature and severity of any neurological disorder. In light of the 2009 VA examiner's findings of a positive straight leg test and the Veteran's complaints of radicular pain, a new VA examination is warranted. The Board further notes, the Veteran submitted a statement from his private physician, Dr. Hurst, dated in July 2010 indicating a list of dates from 2008 to 2010 where the Veteran "due to his pain...[was] incapacitated." These dates amount to six weeks or more per year where the Veteran was "incapacitated" in 2008, 2009 and 2010. It is unclear from the statement whether the list of dates provided by Dr. Hurst indicates dates the physician prescribed bed rest and other treatment to the Veteran or whether these are merely dates the Veteran himself claims he was "incapacitated." Further, it is unclear whether the pain was solely attributable to his service-connected back disability or to other non-service-connected conditions. In other words, it is unclear whether Dr. Hurst is using the phrase "incapacitating episodes" as defined by law and as relevant for VA rating purposes. See 38 C.F.R. § 4.71a, DC 5243, Note (1) (defining an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician). In Savage v. Shinseki, the Board declined considering a private audiogram in ascertaining the current severity of a veteran's hearing loss because it was not apparent on the report whether the private audiologist used the hearing test applicable to rating hearing loss disabilities for VA purposes. Savage, Vet. App. No. 09-4406, 2011 WL 13796 (Vet. App. Jan. 4, 2011). On appeal, the Court of Appeals for Veterans Claims ("CAVC" or "Court") vacated the Board's decision, finding that, in certain limited circumstances such as Mr. Savage's, the Board is required to request clarification from a private medical expert prior to assessing the probative value of the evidence. Id. at *10-*11. Similarly, here, the Board concludes the RO should attempt to seek clarification from Dr. Hurst in accordance with Savage as to whether the July 2010 listed dates of "incapacitating episodes" are indeed periods the Veteran suffered with, "acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (emphasis added). TDIU In light of the Veteran's numerous statements before the Board and VA examiners that he is wheelchair bound and cannot work, the Board has presumed the issue of TDIU, as explained in the introduction. The RO should complete any development necessary to adjudicate the Veteran's TDIU claim. See Rice, 22 Vet. App. 447. The RO should also take this opportunity to obtain any recent VA outpatient treatment records from April 2009 to the present. Accordingly, the case is REMANDED for the following action: 1. In light of the newly inferred TDIU claim, the RO should evaluate the claim and complete any development deemed necessary, to include ensuring VCAA notice obligations are satisfied and affording the Veteran appropriate VA examinations if deemed warranted by the evidence. 2. Ask the Veteran to provide release forms for any and all private medical providers, to include Dr. Hurst, that may contain relevant treatment records; thereafter, the RO should ask the providers for these records explaining that actual medical records, as opposed to summaries, are needed. The RO should also obtain the Veteran's medical records for treatment from the VA Medical Center from April 2009 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. Contact Dr. Hurst specifically asking him to clarify his July 2010 statement listing various dates from 2008 to 2010 that he opines the Veteran was "incapacitated." Specifically, Dr. Hurst should be asked to clarify whether the dates listed indicating the Veteran's incapacitating episodes (1) were due to intervertebral disc syndrome; and (2) required physician prescribed bed rest and treatment. Dr. Hurst should also be asked to provide these written prescriptions given to the Veteran to the extent they exist. 4. Contact the Social Security Administration for the purpose of obtaining a copy of the decision and all medical records relied upon in conjunction with any filed claim by the Veteran for SSA disability benefits. Any attempts to obtain records that are ultimately unsuccessful, should be documented in the claims folder. 5. After the above is completed and records are obtained to the extent available, schedule the Veteran for an orthopedic and neurological examination for his service connected low back and hip disabilities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination, to include a copy of this Remand. Any testing deemed necessary, including X-rays, should be performed. All pertinent pathology associated with the service connected low back and hip disabilities should be noted in the examination report. For any neurological impairment found on examination to be associated with the service connected low back disability, the examiner should specifically state the affected nerve(s) and impairment level (e.g., mild, moderate, moderately severe, severe). The examiner is also asked to provide an opinion of whether there was objective evidence of neurological impairment, to include radicular and bladder impairment, prior to the Veteran's November 2009 VA examination in light of all the medical evidence available at that time. If so, the examiner is asked to specifically state the affected nerve(s) and impairment level (e.g., mild, moderate, moderately severe, severe) at that time. Also, the orthopedic examiner should note whether the Veteran has intervertebral disc syndrome and, if so, should discuss the number of incapacitating episodes resulting in physician prescribed bed rest that the Veteran has experienced in the past year due to this spine disability. In addition, the examiner should discuss whether the Veteran's disabilities exhibits weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disorder. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiners should also express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his back and/or hip repeatedly over a period of time. The examiner should provide an opinion as to the overall effect, if any, the Veteran's service-connected disabilities have on his ability to obtain and retain employment; that is, whether it would preclude an average person from obtaining, or retaining, substantially gainful employment. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. The claims folder must be reviewed by the examiner, to include a copy of this Remand, and the examiner should provide a complete rationale for any opinion given without resorting to speculation resolving any conflicting medical opinions. 6. After the above is complete, readjudicate the Veteran's issues remaining on appeal. If these claims remain denied, provide the Veteran a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ K. PARAKKAL 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) (2010).