Citation Nr: 0734697 Decision Date: 11/02/07 Archive Date: 11/19/07 DOCKET NO. 01-09 117 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial extra-schedular rating in excess of 40 percent for lumbar disc disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESSES AT HEARING ON APPEAL Appellant and a physician ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The appellant had active service from May to November 2000. This appeal to the Board of Veterans Appeals (Board) originally arose from a May 2001 rating action that granted service connection and assigned an initial schedular 20 percent rating for a lumbar disc bulge with degenerative joint disease, effective November 21, 2000. The veteran filed a Notice of Disagreement (NOD) with the assigned rating in July 2001, and the RO issued a Statement of the Case (SOC) in September 2001. The veteran filed a Substantive Appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals)in October 2001 By rating action of May 2002, the RO granted an initial schedular 40 percent rating, effective November 21, 2000, for lumbar disc disease with radicular symptoms; the matter of an initial rating in excess of 40 percent remained for appellate consideration. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2002, the undersigned Veterans Law Judge (VLJ) granted the appellant's motion to advance this case on the Board's docket, pursuant to the provisions of 38 U.S.C.A. § 7107 and 38 C.F.R. § 20.900. In February and March 2003, the Board requested additional development of the claim on appeal pursuant to the provisions of 38 C.F.R. § 19.9 (2002). In June 2003, the Board remanded these matters to the RO for completion of the actions requested. At that time, it was noted that the provisions of 38 C.F.R. § 19.9 essentially conferring upon the Board jurisdiction to adjudicate claims on the basis of evidence developed by the Board, but not reviewed by the RO, had been held to be invalid. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs (Secretary), 327 F.3d 1339 (Fed. Cir. 2003). After completing the requested action, the RO issued a supplemental SOC (SSOC) in July 2003, reflecting the continued denial of the claim. By decision of October 2003, the Board denied an initial rating in excess of 40 percent for lumbar disc disease. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). On the basis of a February 2004 Joint Motion filed by counsel for the VA Secretary and the appellant, the Court, by Order of February 2004, vacated the Board's October 2003 decision and remanded the matter on appeal to the Board for further proceedings consistent with the Joint Motion. This appeal also arises from a December 2003 rating action that denied a TDIU. The veteran filed a NOD in January 2004, and the RO issued a SOC in November 2004. The veteran filed a Substantive Appeal in December 2004. In July 2004, the Board remanded the higher rating claim to the RO for due process development. After completing the requested action, the RO issued a SSOC in August 2004, reflecting the continued denial of the claim. By decision of October 2004, the Board denied an initial schedular rating in excess of 40 percent for lumbar disc disease, and remanded to the RO the matter of a higher initial, extra-schedular rating in excess of 40 percent for that disability-along with the claim for a TDIU-for due process development, to include initial adjudication by the RO. After completing the requested action, the RO denied the claims (as reflected in a January 2005 SSOC), and returned both claims to the Board for further appellant consideration. In January 2006, the veteran and a physician, C. Bash, M.D., testified during a Board hearing before the undersigned VLJ in Washington, D.C.; a transcript of the hearing is of record. By decision of April 2006, the Board denied an initial extra- schedular rating in excess of 40 percent for lumbar disc disease and TDIU. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By Order of April 2007, the Court granted a April 2007 Joint Motion filed by counsel for the VA Secretary and the appellant, vacating the Board's April 2006 decision and remanding the matters on appeal to the Board for further proceedings consistent with the Joint Motion. For the reasons expressed below, the matters on appeal, are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on her part, is required. REMAND In light of points raised in the Joint Motion, the Board finds that further RO action on these matters is warranted. In the Joint Motion, the parties noted that further explanation was needed of the significance of the findings of the August 2003 South Carolina vocational rehabilitation evaluation that noted that the while the appellant was able to tolerate a sedentary-to-light work day for a four-week period, it was with "significant time limitations" and the fact that back pain was aggravated during all flexion. The parties indicated that a proper conclusion on the physical capabilities could not be completed until the significance of the time limitations are addressed, including what is deemed to be "significant, the duration of such time limitations and its realistic effects on employment. It was further noted that Board did not adequately address evidence that indicated that the appellant was unable to complete her vocational rehabilitation due to such things as back pain and her inability to sit still, whether such an inability to complete the rehabilitation would result in marked interference with employment for extra-schedular purposes, and whether this problem had ever been corrected or resolved. The August 2003 South Carolina Vocational Rehabilitation Department report notes that the veteran physically tolerated a full day of activity for the four-week evaluation period at the sedentary to light work level but had significant time limitations in all positions. It was indicated that all flexion exercises increased pain complaints. On VA examination in November 2003, the examiner concluded that the appellant should be able to find and maintain gainful employment but did not address the August 2003 vocational rehabilitation report, particularly the significance of time limitations noted on that report. Given the evidence, the Board determines that further examination of the veteran to obtain an appropriate medical opinion is warranted. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4)(i)(C) (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claims. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility at which the examination is to take place. Prior to arranging for the veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA medical records. The claims file currently includes inpatient and outpatient treatment records from the Charleston VA Medical Center (VAMC) dated from December 2001 to October 2004. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent treatment records since October 2004 from Charleston VAMC, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. Further, to ensure that due process requirements are met and that the record before the examiner is complete, the RO should also give the appellant another opportunity to present information and evidence pertinent to the claims on appeal, notifying her that she has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2006) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). The RO should request that the appellant submit all evidence in her possession, and ensure that its letter to her meets the notice requirements of the decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)- particularly as regards disability ratings and effective dates-as appropriate. After providing the appropriate notice, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Charleston VAMC all outstanding pertinent VA records of evaluation and/or treatment of the veteran's low back, from October 2004 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the appellant and her attorney a letter requesting that the appellant provide sufficient information, and if necessary, authorization to enable it to obtain any additional pertinent evidence not currently of record. The RO should also invite the appellant to submit all pertinent evidence in her possession, and ensure that its letter meets the requirements of Dingess/Hartman (cited to above)-particularly, disability rates and effective dates, as appropriate. The RO's letter should clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the appellant responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant and her attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received are associated with the claims file, the RO should arrange for the veteran to undergo VA orthopedic examination of her lumbar spine, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the veteran, and the report of the examination should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies (to include X-rays) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should provide an assessment as to the extent of the veteran's functional impairment that is attributable solely to her service- connected lumbar spine disability. Specifically, the physician should render an opinion as to whether, notwithstanding any impairment due to any nonservice- connected disabilities, the veteran's service-connected lumbar spine disability renders her unable to obtain and maintain substantially gainful employment. In rendering the above-requested opinion, the examiner should specifically comment upon findings in the August 2003 South Carolina Vocational Rehabilitation Report that the veteran physically tolerated a full day of activity for the four-week evaluation period at the sedentary to light work level, but had significant time limitations in all positions; and that all flexion exercises increased pain complaints. The examiner should address the following: (1) whether the veteran does, in fact, have significant time limitations, as noted in the above- referenced report; (2) if so, what the significant time limitations are, and (3) the effect, from a practical standpoint, of any such significant time limitations, to include whether such time limitations effectively render the veteran unemployable. In addition, the examiner should comment upon whether the veteran's inability to complete vocational rehabilitation is indicates that her lumbar spine disability results in marked interference with employment (i.e., beyond that contemplated in the assigned 40 percent rating). The physician should set forth all clinical findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. 5. If the veteran fails to report for the scheduled examination, the RO should obtain and associate with the record (a) copy(ies) of any notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested development, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and her attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims 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. 2006). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).