Citation Nr: 1103545 Decision Date: 01/28/11 Archive Date: 02/08/11 DOCKET NO. 07-20 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for L4-L5 and L5-S1 disk herniation, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from June 16, 1978 to September 8, 1978 and from October 1, 2002 to October 14, 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in pertinent part denied an increased rating for L4-L5 and L5-S1 disk herniation. The Veteran is also in receipt of 10 percent evaluations for hypoesthesia of the lateral aspect of the right and left lower extremities as neurologic manifestations of his back disability, but he has not disagreed with these evaluations. Findings on a VA examination in August 2008 indicate a possible worsening of disabilities currently styled hypoesthesia of the lower extremities. Inferred claims for increases ratings are referred to the agency of original jurisdiction (AOJ) for adjudication. 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 The most recent VA examination in connection with the Veteran's service-connected low back disability was conducted in August 2008. The Veteran's representative has argued that the examination was inadequate because it did not include any findings as to the presence or extent of incapacitating episodes. See January 2011 Informal Hearing Presentation. Such findings are needed to evaluate the Veteran's disability in accordance with the rating schedule. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The claims folder shows that the Veteran has made a claim for Social Security Administration (SSA) disability benefits. At one point his claim was noted to be at that agency's office of hearings and appeals. The RO has obtained copies of medical records from the SSA, but the claims folder does not contain copies of any decisions made with regard to the Veteran's claim for SSA benefits. VA has a duty to obtain the SSA decision. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). In addition, outpatient treatment records from the VA Medical Center in Durham, North Carolina show that in October 2008, the Veteran complained of low back pain and stiffness and requested a cane for stability when walking. There is also evidence of record which suggests that the Veteran's back disability has had a negative effect on his employment. See November 2005 letter from Veteran's employer. The United States Court of Appeals for Veterans Claims (Court) has held that TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case the veteran has satisfied each of these requirements. His inferred claim for TDIU must be decided as part of the appeal of the rating for his back disability. Rice. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtaining an examination which includes an opinion on what effect the appellant's service- connected disability has on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the case is REMANDED for the following action: 1. Take the necessary steps to obtain any decisions of the Social Security Administration with regard to the Veteran's claim for disability benefits. If these decisions are not available, inform the Veteran and his representative and ask the Veteran to submit any decisions in his possession. 2. The Veteran should be scheduled for a VA examination to determine the current level of impairment due to the service connected low back disability and whether the service connected disabilities render the Veteran unemployable. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. The examiner should report the Veteran's ranges of thoracolumbar spine flexion, extension, lateral flexion, and rotation in degrees and note the presence or absence of muscle spasm in the thoracolumbar spine. The examiner should also report whether the Veteran's thoracolumbar spine is ankylosed. The examiner should determine whether the Veteran's back disability is manifested by weakened movement, excess fatigability, pain, incoordination or flare-ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the additional degree of range of motion lost. The examiner should note the point at which pain begins. The examiner should also note any neurologic impairment associated with the back disability. All affected nerves should be noted, and the severity of any associated disability should be noted. The examiner should also not any periods of physician prescribed bed rest. The examiner should also provide an opinion as to whether the service connected disability would preclude the Veteran from maintaining employment for which his education and occupational experience would otherwise qualify him. The examiner should note the extent and all manifestations of the scar of the back associated with the Veteran's prior disc surgery. The examiner should also note consideration of color photographs (as is required by the rating schedule) and should report whether any of the eight characteristics of disfigurement (scar at least 5 inches in length, scar at least one quarter inch wide at its widest point, scar adherent to underlying tissue; or a scar that is hypo- or hyper- pigmented, scar with an abnormal texture, underlying soft tissue that is missing; or skin that is indurated and inflexible in an area exceeding six square inches) is present. A complete rationale should be given for all opinions and conclusions expressed. 3. The AOJ should adjudicate the question of whether the Veteran is entitled to TDIU. If there is evidence of unemployability and the Veteran does not meet the percentage requirements of 38 C.F.R. § 4.16(a) (2010); the issued should be referred to VA's Director of Compensation and Pension for consideration in accordance with 38 C.F.R. § 4.16(b) (2010). 4. If the benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. 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. 2010). _________________________________________________ Mark D. Hindin 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) (2010).