Citation Nr: 1529449 Decision Date: 07/09/15 Archive Date: 07/16/15 DOCKET NO. 02-12 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES Whether the Veteran is entitled to an extraschedular evaluation in excess of 40 percent for a service-connected low back disability. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. McCurdy, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran was afforded a videoconference hearing before the Board, held by the undersigned, in July 2012. A copy of the hearing transcript has been associated with the record. A claim for a total disability evaluation based on individual unemployability prior to April 12, 2006 was Remanded by the Board in January 2015. The ordered development of that issue has not been completed. The Veteran's attorney submitted additional argument and evidence after the claim was certified to the Board with a waiver of RO consideration. Accordingly, all evidence has been reviewed in connection with this claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In November 2011, the Court of Appeals for Veterans Claims (Court or CAVC) affirmed the Board's denial of a schedular evaluation in excess of 40 percent for the Veteran's low back disability but vacated and remanded the portion of the decision that denied a rating in excess of 40 percent on an extraschedular basis. In April 2012, the Board remanded the claim for an increased rating for low back disability for a hearing. After a Remanding the matter to cure evidentiary and due process defects, the Board issued a decision in December 2013 that denied the Veteran's claim, finding no basis for awarding an extraschedular evaluation. The Veteran subsequently appealed that decision. The parties to the action filed Joint Motion for Partial Remand which was granted by the Court by Order dated in January 2015. In the Joint Motion for Partial Remand (Joint Motion), the parties noted that the Board did not provide a suitable explanation for the determination that the symptoms of the Veteran's low back disability and treatment were not of such severity to render the schedular criteria impractical. Specifically, the parties pointed to evidence of sleep impairment, the constant use of a cane, and the side effects of the Veteran's prescribed pain medication, including drowsiness and daytime somnolence. Upon review, the Board finds that there remains a question as to whether the Veteran's difficulty with sleep and the alleged side-effects of the Veteran's pain medication are symptoms/manifestations his back disability or separate and distinct disabilities that are caused by his low back disability. While the former would result in considering the symptoms as part of an extraschedular rating, the latter approach would raise the question of secondary service connection. The claim for entitlement to an extraschedular rating for a low back disability is presently within the Board's jurisdiction. Although specific claims for entitlement to secondary service connection for a chronic sleep disorder and cognitive disorder the side effects of the Veteran's pain medication have not been separately adjudicated by the RO, the claims are inextricably intertwined with the extraschedular claim, requiring the matters to be considered together. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds 132 S. Ct. 75 (U.S. Oct. 3, 2011). The Board would generally refer the secondary service connection claims to the AOJ for initial development and consideration. However, remanding the claim for this purpose is wholly consistent with the holding in Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011), that no law or regulation precludes VA from providing additional assistance in developing a claim when it is deemed appropriate. See 38 U.S.C.A. § 5103A(g) (West 2002). Thus, the Board may properly direct development and initial development of the claim. Additionally, the Board notes the Veteran's submission of an April 2015 "Expert Independent Medical Review" by Dr. D.M. Unfortunately, the opinion seems incomplete as there are missing pages regarding his assessment of the Veteran's back symptomatology. An additional copy of this report should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's low back disability. Request an additional copy of the April 29, 2015 expert independent medical review by Dr. D.M., J.D. from the Veteran's attorney. Any negative response(s) must be in writing and associated with the claims folder. 2. After associating all outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature, onset, and etiology of the claimed cognitive and sleep impairments. The entire claims file must be reviewed by the examiner. The examiner must respond to the following: (A) Does the Veteran experience any type of chronic cognitive disorder, such as drowsiness and daytime somnolence? If so, does the disorder represent (B) Does the Veteran experience any type of chronic sleep disorder/disturbances. (C) As to any identified chronic cognitive or sleep disorder, does that d (D) As to any diagnosed condition, provide an opinion as to whether it is at least as likely as not (i.e., probability equal to or greater than 50 percent) that the disability is (i) caused by his service-connected low back disability; or (ii) is at least in part aggravated by his service-connected low back disability. The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements, medical records, etc.) and set forth a complete rationale for all findings and conclusions. The examiner should specifically note review of and comment on Dr. D.M.'s April 2015 opinion. All tests deemed necessary by the examiner must be performed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 4. Upon completion of the aforementioned development efforts, undertake appropriate development efforts and adjudicate in the first instance the Veteran's service connection claim for side effects of pain medication as secondary to his service-connected low back disability. 5. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).