Citation Nr: 0814262 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-12 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for neurologic manifestations of the right lower extremity, secondary to low back strain with degenerative disc disease. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from August 1968 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA) that granted the veteran's claim for an increased evaluation and assigned a 40 percent evaluation, effective April 2003. The matter also comes on appeal from a March 2004 rating decision, in which the RO denied the veteran's claim for a total disability rating for compensation purposes based on individual unemployability (TDIU). Procedurally, this case was previously before the Board in September 2005, wherein the Board denied the veteran's claims for a rating in excess of 40 percent for low back strain with degenerative disc disease and for entitlement to TDIU, as well as granted the veteran a separate 10 percent disability rating for neurologic manifestations of the right lower extremity, secondary to low back strain with degenerative disc disease. As noted in a September 2005 rating decision effectuating the Board's decision, an effective date of September 23, 2002 was assigned for the 40 percent disability evaluation for low back strain with degenerative disc disease, and for the 10 percent disability evaluation for the right lower extremity neurologic manifestations. The veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2007, the Court issued a Memorandum Decision, wherein the Court vacated the Board's decision in part and remanded the veteran's claims, as reflected on the title page of this Remand. The case has been returned to the Board for appellate consideration. Unfortunately, further development of the evidence is required before the Board can adjudicate the veteran's pending claims of entitlement to an evaluation in excess of 10 percent for neurologic manifestations of the right lower extremity, secondary to low back strain with degenerative disc disease, and entitlement to TDIU. So, regrettably, these claims are being remanded to the RO via the Appeals Management Center (AMC). VA will notify him if further action is required on his part. REMAND As noted in the Court's Memorandum Decision, VA has not obtained a medical opinion as to the effect of the veteran's service-connected disabilities on his ability to work. Accordingly, the Court found that the veteran must be provided with a VA examination in an effort to determine whether the veteran's service-connected low back strain with degenerative disc disease, and associated neurologic manifestations of the right lower extremity, are sufficient to preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"), in view of the nature of his educational attainment and occupational experience. See Moore v. Derwinski, 1 Vet. App. 356 (1991). See also 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Therefore, the Board finds that the claims must be remanded for compliance with the Court's Memorandum Decision. In this regard, it is noted that the Court in Green stated that the fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Moreover, under the Veterans Claims Assistance Act of 2000 (VCAA), the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Additionally, a review of the record reveals that the veteran has not been provided VCAA notice with regard to the TDIU claim and claim for an increased rating in excess of 10 percent for neurologic manifestations of the right lower extremity, secondary to low back strain with degenerative disc disease, as required by the Veterans Claims Assistance Act of 2000 (VCAA) codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Accordingly, the appeal is remanded to the RO (via the AMC) for the following development and consideration: 1 Issue VCAA notice as to the issues of entitlement to TDIU, and entitlement to an increased rating in excess of 10 percent for neurologic manifestations of the right lower extremity, secondary to low back strain with degenerative disc disease, as required by the Veterans Claims Assistance Act of 2000 (VCAA) codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this regard, he should be apprised of the applicable law governing the assignment of an effective date, in the event of award of any benefit sought. With regard to the claims for TDIU and an increased rating for neurologic manifestations of the right lower extremity, the appellant should be apprised that, to substantiate the claims, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment ability and daily life. Further, the VCAA notice must provide at least general notice of the requirements of 38 C.F.R. § 4.71a, Diagnostic Code 8520 to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The VCAA notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. Schedule the veteran for a VA examination to ascertain the current severity and manifestations of his service-connected low back strain with degenerative disc disease, and right lower extremity neurologic manifestations. Conduct all testing and evaluation indicated and review the results of any testing prior to completion of the examination report. The examiner should characterize the right lower extremity neurologic impairment as mild, moderate, moderately severe or severe, and provide a rationale for the characterization. The examiner should also comment on the veteran's current level of social and occupational impairment due to his service-connected low back strain with degenerative disc disease and neurologic manifestations of the right lower extremity, including an opinion as to whether he is able to obtain or retain substantially gainful employment. Any indications that the veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. If no opinion can be rendered, an explanation should be set forth. The claims file must be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand. The examiner must indicate in the examination report whether or not review of the claims folder was made. Please also discuss the rationale of all opinions provided. 2. Thereafter, the RO should readjudicate the issues on appeal. If any benefit sought remains denied, the RO should issue a supplemental statement of the case and afford the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The purpose of this remand is to further develop the record and afford due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the 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. 2006). ______________________________________________ U. R. POWELL 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).