Citation Nr: 0814664 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-37 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for left leg numbness, claimed as secondary to service-connected degenerative joint disease and degenerative disc disease with herniated disc at L5-S1. 2. Entitlement to an initial disability rating higher than 10 percent for service-connected degenerative joint disease and degenerative disc disease with herniated disc at L5-S1. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from March 1985 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) above, which granted service connection for degenerative joint disease and degenerative disc disease with herniated disc at L5-S1 and assigned a 10 percent disability rating, effective November 2006. In that rating decision, the RO also denied service connection for left leg numbness, claimed as secondary to the service-connected lumbar spine disability, and denied service connection for a positive tuberculosis skin test. In February 2008, the veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is associated with the claims file. Although the veteran filed a timely notice of disagreement as to the denial of service connection for left leg pain and tuberculosis, as well as the disability rating assigned for his lumbar spine disability, he did not perfect his appeal as to the tuberculosis claim by filing a VA Form 9 or equivalent. In this regard, the Board notes that, at the February 2008 hearing, the veteran's representative confirmed that the tuberculosis claim is no longer on appeal. Therefore, only those issues listed above are before the Board for appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will provide notification when further action is required on the part of the veteran. REMAND Unfortunately, review of the claims file reveals that further RO action is warranted on the claims on appeal. The veteran is seeking a disability rating higher than 10 percent for his service-connected lumbar spine disability. In support of his claim, he asserts that the 10 percent rating currently assigned does not adequately reflect the severity of his lumbar spine disability, as he has difficulty sitting for long periods of time and doing minor things like yard work. He also contends that his service-connected back disability has affected his ability to work, as he lost his last job because he was unable to perform the job duties. The veteran is also seeking entitlement to service connection for left leg numbness as secondary to service-connected degenerative joint disease and degenerative disc disease with herniated disc at L5-S1. In this regard, the veteran has consistently complained that he experiences tingling, numbness, and pain in his left leg that radiates from his back down to his left foot. With respect to the claim for service connection for left leg numbness, the service medical records (SMRs) show the veteran complained of persistent low back pain with paresthesias in the L5-S1 distribution, which did not respond to medication or therapy. In addition, a March 2005 MRI revealed mild central disc herniation at L5-S1, which the treating physician noted correlated clinically for S1 radiculopathy. The veteran was afforded a VA examination in November 2006, at which time the VA examiner evaluated the lumbar spine disability by performing various tests, including range of motion and a neurological examination. The examiner also noted the veteran had constant back pain that radiated constantly down the back of his left leg to the plantar surface of the left foot. During the examination, the November 2006 VA examiner noted the veteran had pain while demonstrating all planes of excursion, and also noted the veteran's range of motion after repetitive motion; however, the examiner did not provide an opinion as to any additional functional limitation the veteran experiences due to pain, pain, swelling, weakness, and excess fatigability. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The November 2006 VA examiner also noted that the veteran had a normal neurological examination; however, he did not render a diagnosis as to the veteran's claimed left leg numbness, or provide an opinion as to the relative likelihood that the left leg numbness is due to his service-connected lumbar spine disability. In this context, the Board notes the evidence indicates that the numbness in the veteran's left leg increases with the severity of his back pain. See April 2007 statement from Dr. K.A.P.; see also February 2008 hearing transcript. In fact, the veteran's private physician, Dr. K.A.P., has stated that the veteran has radiating leg pain due to abnormalities in his lumbar spine at L5-S1. See July 2007 statement from Dr. P. Despite all the foregoing medical evidence, the record does not contain a competent medical opinion addressing the question of whether there is a causal relationship between the veteran's current left leg numbness and his service- connected lumbar spine disability. Under the Veterans Claims Assistance Act of 2000, VA is obligated to provide an examination where the record contains competent evidence that the claimant has a current disability, the record indicates that a disability or signs or symptoms of disability might be associated with active service, and the record does not contain sufficient information to make a decision on a claim. 38 U.S.C.A. § 5103A; see also McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). In this case, as noted, the veteran's SMRs show he complained of paresthesias in conjunction with his low back pain, and there are statements from medical professionals which indicate that the veteran's current radiating left leg pain may be associated with his service. As a result, the Board concludes that the veteran should be afforded a VA examination in order to determine whether his current left leg symptomatology is etiologically related to service, to include the service-connected lumbar spine disability. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004) (holding that a medical examination should be afforded unless there is "no reasonable possibility" that an examination would aid in substantiating the veteran's claim). Therefore, the Board finds that a remand for a medical examination and opinion is necessary in order to render a fully informed decision. Because the veteran is seeking service connection for his left leg numbness as secondary to his service-connected lumbar spine disability, both his lumbar spine and left leg will be evaluated and the examiner will be requested to provide analysis and an opinion as to the requirements of DeLuca, supra. With respect to any effect the veteran's service-connected lumbar spine disability has on his employability, the Board notes the veteran submitted an April 2007 written statement from his former employer which indicates that the veteran was replaced due to his physical limitations. Therefore, the Board finds that the veteran's statements and testimony that his service-connected lumbar spine disability affects his employability constitute an informal claim for a total disability rating based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (when a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and also submits evidence of unemployability, VA must consider a claim for TDIU). Although the veteran has consistently reported interference with work due to his lumbar spine disability and the April 2007 statement from the veteran's former employer was of record when the case was certified to the Board, entitlement to a higher disability rating on an extra-schedular basis has not yet been adjudicated. We recognize that he is currently ineligible for such a rating on a schedular basis as his service-connected disabilities are rated no higher than 10 percent, see 38 C.F.R. § 4.16(a), but his entitlement to such a rating on an extra-schedular basis must also be considered where there is evidence of unemployability by reason of a service-connected disability. See 38 C.F.R. § 4.16(b). Given these facts, and the fact that the evidence pertaining to the veteran's unemployability concerns his lumbar spine disability, the Board finds that the claim for a TDIU is inextricably intertwined with the claim for a higher initial rating for service-connected degenerative joint disease and degenerative disc disease with herniated disc at L5-S1, and that the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Therefore, on remand, the RO will be requested to perform the proper procedural actions outlined in 38 C.F.R. § 3.321(b)(1). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim, the case is REMANDED for the following development: 1. Schedule the veteran for VA orthopedic and neurological examinations to determine the current level of low back impairment, to include whether there is a causal nexus between his claimed left leg numbness and service-connected lumbar spine disability. All indicated tests and studies should be conducted, and all findings described in detail. The claims file must be made available to the examiner for review, and the examination report should reflect that such review was accomplished. a. The orthopedic examiner is asked to describe the range of motion in degrees of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The examiner is asked to comment on objective evidence of painful motion or functional loss due to pain, including with flare-ups, if any, and to describe painful motion in terms of additional limitation of motion if feasible. The examiner is also asked to comment on swelling, weakness, and fatigability, if any. b. The neurological examiner is asked to describe any neurological deficits, and, if any, whether the findings are related to the service-connected low back disability, including degenerative joint disease or degenerative disc disease. c. The neurological examiner is specifically asked to provide a diagnosis of any currently manifested left leg neurological disability and to render an opinion as to whether the condition is etiologically related to the veteran's service-connected lumbar spine disability. All necessary special studies or tests, including X-ray films, if necessary, are to be done. d. The examiner is requested to offer an opinion as to whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that the veteran's service- connected degenerative joint disease and degenerative disc disease with herniated disc at L5-S1 caused or aggravated any currently manifested left leg neurological disability. e. If the veteran's left leg neuropathy was aggravated by his service-connected lumbar spine disability, to the extent possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the non- service-connected left leg neuropathy before the onset of the aggravation. f. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. g. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability h. If the examiner is unable to answer any question presented without resort to speculation, the examiner should clearly and specifically so specify in the report, and explain why this is so. 2. A determination should be made as to whether submission to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration for an extra- schedular TDIU rating under 38 C.F.R. § 3.321(b)(1) is warranted. This determination, as well as all ensuing procedural actions, should be fully documented in the claims file. 3. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 4. If the claim for TDIU is denied, the RO should provide separate notice of the denial and afford the veteran an opportunity to perfect an appeal as to that issue. The Board further point out to the veteran that, if he wishes to pursue an appeal of any issue not currently in appellate status, specifically, the claim for TDIU, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise informed. 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). The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. § 3.655 (2007). 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). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).