Citation Nr: 1039594 Decision Date: 10/22/10 Archive Date: 10/27/10 DOCKET NO. 96-42 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a disability greater than 20 percent lumbar strain with lumbar spondylosis. 2. Entitlement to a disability rating greater than 10 percent for degenerative arthritis of the right knee. 3. Entitlement to a disability rating greater than 10 percent for degenerative arthritis of the left knee. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Private Attorney ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active military service from September 1952 to August 1956, and from September 1960 to March 1971. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In an October 1999 decision, the Board denied the claims then before it. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a March 2001 Order, the Court granted a Joint Motion for Remand and vacated and remanded the matter to the Board. The Board remanded the claims in August 2003 and February 2005. In February 2005, the issues before the Board were entitlement to service connection for arthritis of the neck, entitlement to service connection for degenerative spondylolisthesis, entitlement to a disability evaluation in excess of 10 percent for lumbosacral strain, and entitlement to an increased evaluation for degenerative arthritis of the left and right knees, currently evaluated as 10 percent disabling. Following the completion of the requested development, a January 2006 rating decision granted service connection for neck strain with degenerative disc disease and pain, rated as 10 percent disabling, effective from June 1996. The Veteran submitted a notice of disagreement with the evaluation assigned, but did not submit a substantive appeal in response to an October 2007 statement of the case. Thus, the issue is no longer in appellate status. In a January 2006 rating decision, the RO continued the denial of an evaluation in excess of 10 percent for the right knee disability, and the denial of an evaluation in excess of 10 percent for the left knee disability. In an August 2006 rating decision, the RO granted service connection for lumbar spondylosis (formerly claimed as spondylolisthesis), incorporated it with the service-connected lumbosacral strain under appeal, and granted an increased disability evaluation for the resulting lumbar spondylosis, from 10 percent to 20 percent disabling, effective from September 26, 2005. In a May 2008 decision, the Board granted a 20 percent disability rating for lumbar strain with lumbar spondylosis from February 8, 1996, the date of the claim on appeal, and continued 10 percent disability ratings for each of the Veteran's service-connected knees. The Veteran appealed that decision to the Court. In a February 2010 Order, the Court set aside the May 2008 Board decision and remanded the matter to the Board for compliance with the February 2010 Order. 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 Further development is needed to determine whether, and to what extent, the Veteran currently suffers from neurological deficits secondary to his service-connected lumbar strain with lumbar spondylosis. During a June 1998 VA examination, the Veteran complained of pain radiating to his hip. During a June 2004 VA examination, he denied pain radiating from his back and did not complain of any sciatica. During a September 2005 VA examination, the Veteran denied radiation of back pain to his hands or feet. In a January 2006 VA examination, the examiner indicated that the Veteran suffered from radicular symptoms including shooting pain into his groin and further noted that lumbar degenerative spondylosis caused impingement on nerve roots. A June 2005 report from Dr. C.N.B. submitted in support of the Veteran's claim included that physician's opinion that the Veteran's back disorder has been incorrectly diagnosed. On remand, the Veteran should be afforded a new examination for his back disorder with an emphasis on determining whether the Veteran suffers from neurological impairment as a result of his back disorder. Furthermore, the Board notes that it is unclear whether the Veteran currently suffers from instability of the knees as a result of his service-connected degenerative arthritis of the bilateral knees. As noted in a February 2001 Joint Motion for Remand, instability of the knees was noted in VA outpatient treatment records dated from October 1980 to November 1980, an April 1981 VA examination, as well as in the Veteran's September 1996 substantive appeal. However, during a June 2004 VA examination, the Veteran denied instability and during a September 2005 VA examination the examiner noted "no varus or valgus instability bilaterally." Unfortunately, the most recent VA examination dated in April 2007 fails to comment on whether the Veteran experiences instability of either knee. On remand, the Veteran should be afforded a new examination for his bilateral knee disorders with an emphasis on determining whether the Veteran suffers from instability of his knees. Finally, in a September 2010 statement the Veteran's representative argued that the Veteran could not maintain substantially gainful employment because of his service-connected low back and knee disorders. A claim for TDIU is not a freestanding claim. Rather, it is a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability(ies). Such a claim may be expressly raised or it may be "reasonably raised by the record," and the claim may be filed as a component of an initial claim or as a claim for an increased rating for a service-connected disability. If a veteran asserts entitlement to a TDIU during the appeal of the initial evaluation assigned, such as in the present case, the issue is part of the underlying claim for an increased initial evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the Veteran has raised the issue of entitlement to a TDIU as part of his claim for a higher rating for the service-connected low back and bilateral knee disorders. Although they are listed separately on the title page, the issues are not independent and must be adjudicated as one claim. See Rice, 22 Vet. App. at 455. While the RO has already adjudicated the issue of entitlement to TDIU on a schedular basis by rating decision dated in June 2007, in exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b) (1). The record reveals that the Veteran worked as a truck driver until 1995. In a June 2005 statement from Dr. C.N.B., the physician opined that "due to the severity of [the Veteran's] spine disease... he is totally and permanently disabled and has not been able to work since 1995 due to his service induced spine injuries." Therefore, on remand, the RO must obtain a medical opinion regarding whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected lumbar spine and bilateral knee disorders and also consider whether referral for an extraschedular evaluation is necessary. Barringer v. Peake, 22 Vet. App. 242 (2008). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to identify the current level of impairment resulting from his service- connected lumbar spine and bilateral knee disorders. The claims file must be made available to the examiner for review in connection with the examination. All necessary tests should be conducted, including any specific nerve studies to include electromyography and/or nerve conduction velocity tests. The examiner should identify and describe in detail all manifestations of the Veteran's service-connected lumbar spine and bilateral knee and specifically indicate the following: (a) Whether the Veteran suffers from neurological impairment as a result of his back disorder. If so, the nerves affected should be identified and the degree of any paralysis specified. (b) whether the Veteran suffers from instability of his knees. The examiner should also describe the effects, if any, of the service-connected disabilities on the Veteran's ability to work and provide an opinion as to whether it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected lumbar spine and bilateral knee disorders. A complete rationale for all opinions should be expressed. 2. After consideration of the foregoing, readjudicate the claim, including schedular and extraschedular ratings. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond. 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. 2009). _________________________________________________ M. E. LARKIN 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) (2009).