Citation Nr: 0812671 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 95-28 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to a total disability compensation rating based on individual unemployability (TDIU). 2. Entitlement to an effective date of service connection prior to September 23, 2003 for left L5-S1 radiculopathy. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from September 1972 to September 1974, January 1979 to September 1979, and from January 1991 to July 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 1996 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Atlanta, Georgia that denied the veteran's claim for a TDIU, and a February 2007 rating decision of the Appeals Management Center (AMC) in Washington, District of Columbia, that granted the veteran's claim of service connection for left L5-S1 radiculopathy, with an evaluation of 10 percent, effective September 26, 2003. The veteran perfected an appeal of the TDIU issue. In June 2005 the veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The TDIU issue was before the Board in September 2005 and was then remanded. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND These matters must be remanded for the following reasons. In a statement received in November 2007, the veteran indicated that he had been treated at the VA Medical Center (VAMC) in Augusta, Georgia for his back condition, and he requested that VA obtain such treatment records. The most recent VA medical treatment records in the claims folder are dated in February 2005. In its October 2007 Supplemental Statement of the Case, the RO indicated that VA treatment reports from VAMC Augusta from 2006-2007 were obtained. However, there is no indication in the claims folder that the RO attempted to obtain such records, and no such records are associated with the claims folder. 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 that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466- 67 (1998); See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As the veteran's VA medical treatment records may have an impact on the adjudication of his claim, VA must obtain such records before making a final decision. Also, the veteran's November 2007 statement indicates that the veteran is seeking entitlement to a TDIU on an extra- schedular basis. An October 2005 VA examination report indicates that the veteran's inability to lift due to lumbar restrictions has made him unable to do the nursing work for which he was trained, and that he was unable to lift the 45 pounds required for his position. Another October 2005 VA examination indicates that, with regard to the effect of the veteran's spine disabilities on his ability or potential to hold employment, it was very difficult to say how productive he would be in an employed position, being that his pain in his neck severely limited his ability even to rotate or bend. Also, a July 2006 VA examination indicates that the veteran's service-connected hypertension does not prevent gainful employment, although the veteran would be best suited to sedentary occupations that required no strenuous activity and no excessive stress. The medical evidence is unclear as to whether the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Therefore, the veteran should be afforded a new VA examination in order to determine the effect of his service- connected disabilities on his ability to secure and follow a substantially gainful occupation. Thereafter, this matter should be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extra-schedular rating under 38 C.F.R. §§ 3.321(b)(1) and 4.16. Finally, in his November 2007 statement, the veteran expressed disagreement with the effective date of service connection for left L5-S1 radiculopathy, which was granted in a February 2007 rating decision. Because the filing of a notice of disagreement initiates appellate review, the claim must be remanded for the preparation of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Accordingly, the case is REMANDED for the following action: 1. The RO should afford the veteran a new VA examination by an examiner with the appropriate expertise in order to determine whether the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. The claims file and a separate copy of this remand must be provided to the examiner for review. The examiner should note in the examination report that he or she has reviewed the claims folder. The examiner should discuss the extent to which the veteran's service- connected disabilities (low back strain, cervical strain, left L5-S1 radiculopathy associated with low back strain, and hypertension) interfere with his ability to follow a substantially gainful occupation. Specifically, the examiner should express an opinion as to whether the veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be clearly set forth. The report of the examination should be associated with the claims folder. 2. When the above development has been completed, the RO should refer the veteran's claim for TDIU on an extraschedular basis to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (or any other appropriate VA official) for the purpose of considering whether an extra-schedular rating may be assigned in this case under 38 C.F.R. § 4.16 or 38 C.F.R. § 3.321(b)(1). 3. With respect to the issue of entitlement to an earlier effective date of service connection for left L5- S1 radiculopathy, the RO should furnish the veteran and his representative a Statement of the Case in accordance with 38 U.S.C.A. § 7105 (West 2002). The veteran and his representative should clearly be advised of the need to file a Substantive Appeal following the issuance of the Statement of the Case if the veteran wishes to complete an appeal from that decision. 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 Supp. 2007). _________________________________________________ CHERYL L. MASON 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) (2007).