Citation Nr: 1103752 Decision Date: 01/31/11 Archive Date: 02/08/11 DOCKET NO. 07-38 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating higher than 20 percent for service- connected spinal stenosis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from January 1981 to August 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran now resides in Alabama, so the matter is now handled by the RO in Montgomery, Alabama. The Veteran requested a hearing before the Board. The requested hearing was conducted in November 2010 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. 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 Veteran is seeking entitlement to a rating higher than 20 percent for service-connected spinal stenosis. She asserts her symptoms are more severe than what is represented by a 20 percent rating. The Board notes that medical records indicate the Veteran suffers from neurological symptoms as a result of her service-connected spinal stenosis. The June 2009 VA examiner stated the Veteran had lower extremity radiculopathy, left greater than right, mild to moderate. The current rating schedule for spinal disabilities allows for separate ratings of neurological symptoms. A remand is necessary to afford the Veteran a VA examination to determine the severity of her neurological symptoms. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. During her hearing, the Veteran reported that she cannot work due to her spine disability, and has been unemployed since 2008. The Board finds that the record raises a claim for a TDIU rating. The Board cannot adjudicate this issue in the first instance. Accordingly, the case is REMANDED for the following actions: 1. Give the Veteran appropriate VCAA notice concerning her claim for a TDIU rating. 2. Obtain all updated treatment records. 3. Afford the Veteran a VA examination to determine the severity of her orthopedic and neurological symptoms associated with her service-connected spinal stenosis. The Veteran's claims folder must be made available to and reviewed by the examiner. The examination report must include ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain, if any. Consideration must be given to additional limitation of motion/function due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Consideration should also be given to weakened movement, excess fatigability and incoordination. Any neurologic abnormalities that are a result of the spinal disability, including, but not limited to, bowel or bladder impairment, should be identified. The examiner should also identify which nerves are involved, the severity of impairment, and completely describe all current symptomatology. Ask the examiner to discuss all findings in terms of 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves Schedule of Ratings. For each nerve involved, the examiner must state whether the impairment is mild, moderate, or severe. The pertinent rating criteria must be provided to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. 4. Schedule the Veteran for a Social and Industrial Survey. The Veteran's claims folder must be made available to and reviewed by the examiner. Following the examination, the examiner should address the following: a) Describe all symptoms caused by the service-connected spine disability, as well as the severity of each symptom. b) List any side effects the Veteran has from the medication taken for her service- connected disability, and identify all side effects that affect her ability to obtain and/or retain a substantially gainful occupation. c) The examiner should opine as to whether the Veteran's service-connected disability, without consideration of her nonservice-connected disabilities, renders her unable to secure or follow a substantially gainful occupation. d) Finally, if the Veteran's service- connected disability does not render her unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging in with her current service-connected disability, considering her current skill set and educational background. 5. The Veteran is hereby notified that it is her responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of her case. 6. After all of the above actions have been completed and the Veteran has been given adequate time to respond, readjudicate her claim. If the claim remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which 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 Veteran 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). _________________________________________________ MARJORIE A. AUER 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).