Citation Nr: 1233455 Decision Date: 09/26/12 Archive Date: 10/09/12 DOCKET NO. 09-12 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for a low back disability diagnosed as facet joint arthritis, rated 20 percent disabling from April 7, 2010. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1993. This matter was last before the Board of Veterans' Appeals (Board) in February 2012 on appeal from a July 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The RO granted entitlement to service connection for facet joint arthritis of the spine and assigned an initial 10 percent disability evaluation effective February 26, 2002. The Veteran timely appealed the rating that had been assigned for his spinal disability. In a November 2010 rating action, the RO increased the Veteran's disability evaluation to 20 percent effective April 7, 2010. However, the Veteran, through his authorized representative, submitted a January 2011 written statement indicating that the 20 percent disability rating did not satisfy his appeal. The issue of the entitlement to an increased initial disability rating remains on appeal before the Board. See A.B. v. Brown, 6 Vet.App. 35, 39 (1993). Although this matter was certified to the Board as two (2) claims - for an initial disability rating in excess of 10 percent and (italics added for emphasis) for a disability evaluation in excess of 20 percent after April 7, 2010 - the Veteran has only one (1) claim on appeal other than the claim for a TDIU. As noted by the United States Court of Veterans Appeals (Court) in Fenderson v. West, 12 Vet.App. 119, 125 (1999), when a claimant appeals the initial disability rating assigned, he or she is placing that original claim in appellate status; the appeal includes his or her potential entitlement to staged ratings. 38 C.F.R. §§ 3.151, 3.155, 3.160(c); VAOPGCPREC 8-2003. The Board has recharacterized the issues to correctly reflect the procedural history. See 38 C.F.R. § 19.35 (2011) (certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue). The issue of entitlement to TDIU has been added to the appeal because a TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet.App. 447 (2009). As the Veteran has appealed the rating assigned for his spinal disability, presented evidence of unemployment, and alleged that he is unable to work as a result of his back disability, the issue of entitlement to a TDIU is part of his appeal. Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001); 38 C.F.R. § 3.155(a) (2011). In June 2009, a hearing was held at the Newark, New Jersey RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In addition to the paper claims file, an electronic file -the Virtual VA paperless claims processing system- is also associated with the Veteran's record. Review of the Virtual VA system revealed several medical records pertinent to the present appeal; these records have been carefully reviewed. At the June 2009 hearing, the Veteran, through his authorized representative, raised the issue of whether there was clear and unmistakable error (CUE) in a September 1993 rating decision that denied service connection for a back disability. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the Board does not have jurisdiction over it, it is REFERRED to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, to ensure compliance with applicable law. VA will notify the Veteran if further action is required on his part. REMAND The claims file reflects that certain evidence remains outstanding and that a new VA examination is warranted. The matter must be remanded to the RO/AMC for further development in accordance with VA's duty to assist. The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. The last VA treatment notes within the claims file were generated February 22, 2012. While this case is in remand status, the RO/AMC must obtain any outstanding records of pertinent treatment and associate them with the claims file. As the Veteran has contended that he is unable to work as a result of his service-connected back disability, employment records are potentially relevant to his claim. In Spurgeon v. Brown, the Court held that VA had a duty to advise the claimant of the potential relevance of employment records. 10 Vet.App. 194, 197-98 (1997). The Veteran has reported that he was last employed in 2007 by the New Jersey Institute of Technology as a dining worker. The RO/AMC must take appropriate steps to have the Veteran's most recent employer complete a Request for Employment Information Form in order to clarify the date he was last employed and the reason for his departure from the job. See 38 U.S.C.A § 5103A(b)(1). The Veteran has also informed VA that he applied for disability benefits from the Social Security Administration (SSA). Although the claims file does not reflect that he has been awarded any such benefits, the SSA's development of his claim may have generated evidence relevant to his claim. The RO/AMC must take appropriate steps to obtain pertinent documents from the SSA. Voerth v. West, 13 Vet.App. 117, 121 (1999); 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2011). Pursuant to 38 C.F.R. § 3.327(a) (2011), examinations will be requested whenever VA determines that there is a need to determine the exact nature, or severity, of a disability. See also 38 C.F.R. § 3.159 (2011). VA has the authority to schedule a compensation and pension examination when one is deemed necessary and the Veteran has an obligation to report for that examination. Although the Veteran was afforded a VA spinal disorders examination in April 2010, he has contended that his back disability is currently more severe than the rating that was assigned effective April 7, 2010 - the claims file contains treatment notes reflecting increased back pain since that date, but no evaluation of his level of disability. As more than two (2) years have passed since the last examination and the medical evidence of record reflects that his disability may have changed in severity, the Board finds that a new examination is warranted. 38 C.F.R. § 3.327(a). The appeal is therefore REMANDED to the RO/AMC for the following actions: 1. Gather any records of pertinent VA treatment or examination occurring after February 22, 2011 and associate them with the record. 2. Notify the Veteran that health records maintained by his former employer(s) may be relevant to his claims. Provide him with the necessary authorizations for the release of ANY pertinent private treatment records not currently on file AND any health records maintained by his former employer(s). Make at least two (2) attempts to obtain any records that the Veteran identifies as pertinent to his claims. Associate any available records with the claims file. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 3. Send a request for Employment Information (VA Form 21-4192) to the Veteran's last identified employer (New Jersey Institute of Technology). 4. Take appropriate steps to obtain from the SSA copies of the evidence relied on in any decisions regarding the Veteran's eligibility for disability benefits. If the records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies of such documents in his possession. 5. Afford the Veteran an opportunity to attend a VA examination at an appropriate location to determine the current severity of his service-connected spinal disability and the impact of that disability on his employability/employment. The examiner must review the ENTIRE claims file - with particular attention to the April 2010 VA examination report and any records generated subsequently - and conduct an interview with, and an examination of, the Veteran. Discuss any changes in severity and provide current findings including range of motion measurements with any additional loss of range of motion due to any weakened movement, excess fatigability, incoordination, pain or flare ups. State whether the disability results in incapacitating episodes and report the duration of the episodes over the past 12 month periods since the last examination. Discuss the effects of the disability on the Veteran's employment / employability. Diagnose and assess (mild, moderate, moderately severe, or severe; and/or complete or incomplete paralysis of any nerve) any associated neurologic abnormalities. Schedule any additional tests necessary for the evaluation of any such associated abnormalities. If the examiner is not able to provide the requested opinions, he or she should explain why. 6. Readjudicate the Veteran's claims, to include consideration of the application of any staged ratings appropriate for his spinal disability. Also consider the applicability of any separate ratings for any objective neurologic abnormalities associated with that disability. 7. If the claims are not granted in full, the Veteran (and his representative - if any) must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. 2011). _________________________________________________ CHERYL L. MASON 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) (2011).