Citation Nr: 0813378 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 00-11 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Mark R. Lippman, Esq. ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from August 1987 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded the appeal in April 2001. The veteran then appealed a September 2002 Board decision, denying his claim, to the United States Court of Appeals for Veterans Claims (Court). In December 2003, the Court vacated and remanded the Board's decision. Thereafter, the Board promulgated an October 2004 decision, denying this claim, which the veteran again appealed to the Court. By Memorandum Decision, dated in June 2007, the Court vacated the October 2004 Board decision and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. 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 In its Memorandum Decision of June 2007, the Court focused on certain evidentiary development that it believed was required as a result of information provided by the veteran to the VA spine examiner on March 27, 2002. More specifically, the Court noted that in the examination report from this examination, the examiner indicated that the appellant claimed he had visited the emergency room twice during the past year, and had been at the VA Medical Center (VAMC) due to low back pain. The examiner further stated that computer notes revealed that the appellant had been at the VAMC on February 19, 2002, "due to low back pain with radiation to the left leg." The examiner also noted that the appellant "had referral[s] to pain clinics and neurosurgeons." In this regard, while the Court recognized that there was no evidence that such records actually existed, it found that it was equally true that there was no evidence that the Secretary had complied with his obligation to make "reasonable efforts" to obtain them, which, in the case of VA records, would including a request to the veteran for enough information to identify and locate the existing records. 38 C.F.R. § 3.159(c)(2)(i) (2007). Consequently, the Board finds that it is necessary to remand this claim so that a reasonable effort can be made to obtain any records that may exist based on the information provided to the March 2002 VA spine examiner. The Court further indicated that if the putative records were not maintained by VA, VA must demonstrate that it made initial and follow-up requests to obtain the records or, if there was not enough information given by the appellant to enable VA to make such requests, the Board must explain how the appellant failed to provide sufficiently specific information to enable VA to request the records. 38 C.F.R. § 3.159(c)(1)(i) (2007). The record further reflects that during the pendency of this appeal, the veteran was granted service connection for left hip necrosis with osteoarthritis by a rating decision in September 2007, at which time a 20 percent rating was assigned for this disability, effective from March 28, 2007. Therefore, the Board finds that regardless of whether additional records are obtained as a result of the efforts outlined above, the veteran should be afforded a new examination to determine whether his service-connected low back, left knee, left thumb, left hip and right eyebrow scar disabilities now preclude him from securing or following a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. With respect to medical care providers that rendered medical care to the veteran during a one year period prior to the date of the veteran's March 27, 2002 VA spine examination, the veteran should be requested to provide: (a) For all non-VA medical care providers during that period, the veteran must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and the condition for which treatment was provided. (b) For VA providers during that period, the veteran must provide enough information to identify and locate the existing records, including the custodian or agency holding the records; the approximate time frame covered by the records; and the condition for which treatment was provided. 2. Following the receipt of information provided by the veteran pursuant to Item no. 1, above, a reasonable effort should be made to obtain any records identified by the veteran, including the pain clinic and neurosurgeon medical records identified in the March 2002 VA examination report, as noted in the June 2007 Court's Memorandum Decision. For private treatment records, VA's reasonable efforts to obtain such records generally consist of an initial request for the records, and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1) (2007). For VA records, VA's efforts to obtain records will end only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2) (2007). All efforts to obtain the requested records should be documented and associated with the claims folder. 3. Schedule the veteran for a VA examination to determine the nature and severity of his service-connected left posterolateral herniated nucleus pulposus at L5-S1, left knee meniscal tear with chronic synovitis with intra- articular effusion, status post left thumb fracture, left hip necrosis with osteoarthritis and residual scar of the right eyebrow. The claims folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated studies should be conducted. The examiner should describe all symptomatology due to the veteran's service-connected low back, left knee, left thumb, and left hip disabilities, including setting forth in degrees of excursion any limitation of motion of the affected joints and any neurological manifestations thereto. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including pain during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the veteran's low back, left knee, left thumb, and left hip are used repeatedly. All limitation of function and neurological manifestations must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner is requested to express a medical opinion as to the degree of occupational impairment attributable to the veteran's service-connected left posterolateral herniated nucleus pulposus at L5-S1, left knee meniscal tear with chronic synovitis with intra- articular effusion, status post left thumb fracture, left hip necrosis with osteoarthritis and residual scar of the right eyebrow, as opposed to any non- service-connected disabilities and advancing age. In particular, describe what types of employment activities would be limited because of these service-connected disabilities, and whether any limitation on employment is likely to be permanent. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 4. Finally, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ C. TRUEBA Acting 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).