Citation Nr: 1300543 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-39 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service-connected spondylosis of the lumbar spine at L5-S1 with degenerative disc disease of L4-L5 and L5-S1 with lumbar strain (lumbar spine disability) from June 2, 2008, to April 16, 2012. 2. Entitlement to a rating in excess of 60 percent for service-connected lumbar spine disability from April 17, 2012. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from November 1943 to April 1945. The matters concerning the Veteran's lumbar spine come to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This rating decision continued the 20 percent disability rating for the service-connected lumbar spine disability, previously rated as hypertrophic arthritis of the lumbosacral spine upon deformity of spine with spondylolisthesis of the L5 and S1 vertebrae (effective from April 28, 1945). The Board remanded the claim regarding entitlement to an increased rating for the Veteran's service-connected lumbar spine disability in December 2011 so that a video conference could be scheduled. A video conference hearing was held in February 2012, with the Veteran sitting at the RO, and the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing testimony (transcript) is associated with the claims folder. The Board again remanded the lumbar spine claim in March 2012 so that further development could be conducted. As discussed below, the Board finds that there was not substantial compliance with its remand with respect to the lumbar spine increased rating claim addressed herein and that it may not therefore proceed with a determination as to that issue at this time. See Stegall v. West, 11 Vet. App. 268 (1998). Following the March 2012 remand the RO, as part of an October 2012 rating decision, increased the disability rating assigned to the service-connected lumbar spine disability (then characterized as spondylosis of the L5-S1 with degenerative disc disease of L4-5 and L5-S1 with lumbar strain) to 60 percent, effective April 17, 2012. As the Veteran is in receipt of less than the maximum schedular rating for this disorder, this issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board here notes that the increased rating claim now at issue was received by VA on June 2, 2009. See VA Form 21-4138. See also 38 C.F.R. § 3.400(o). This increased rating matter is therefore characterized as shown on the title page of this decision. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of TDIU is inferred in increased rating claims where the veteran claims his disability affects his employability. The Board finds that the Veteran has indicated he is not currently working because of his service-connected low back disability. See December 2012 Written Brief Presentation. Accordingly, the Board finds TDIU has been reasonably raised by the record. The issues of entitlement to increased ratings for a low back disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the Veteran if further action is required on his part. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Lumbar Spine As indicated in the Introduction, this increased rating claim was most recently remanded by the Board in March 2012. Unfortunately, the ordered development remains to be sufficiently completed. Accordingly, another remand is regretfully required. Stegall. As mentioned by the Board in March 2012, at which time a recitation of the Veteran's allegations regarding the worsening of his service-connected lumbar spine disability were enunciated, it was noted that the Veteran had testified in the course of his February 2012 hearing before the undersigned that he had been in receipt of treatment for his back condition at the VA Medical Center (VAMC) in Memphis for more than one year. See page six of transcript. The Veteran also testified that that he was scheduled to be afforded a urologist appointment in the "coming month." See page nine of transcript. The Board noted in March 2012 that "[g]iven that the aforementioned VA treatment records are relevant to the issue on appeal, the Board must return the case to obtain these records." See Bell v. Derwinski, 2 Vet. App. 611 (1992). Concerning the ordered effort to attempt to associate these cited VA records with the Veteran's claims file the remand order also specifically stated: "If the search for such records proves unsuccessful, this should be documented in the claims file and the Veteran should be notified of this fact." Review of the claims file shows that no VA outpatient treatment records were associated therein subsequent to the Board's March 2012 remand. The Board also notes, however, that a May 2012 printout from "CAPRI" (VA's Compensation and Pension Records Interchange) appears to show that treatment records, with a start date of May 14, 2010, and an end date of April 18, 2012, had been received on May 4, 2012. Review of the Veteran's claims folder, unfortunately, does not show that these records have been associated therein. Also, a search of "Virtual VA" (a paperless claims processing system, which instead of paper, utilizes a highly secured electronic repository to store and review every document involved in the claims process), likewise does not include any VA medical records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell, at 613. These treatment records, if obtained, should be associated with the claims file. 38 U.S.C. § 5103A (West 2002). Also as part of the Board's March 2012 remand, it was also ordered that the Veteran be afforded an examination to determine the current nature and severity of all manifestations of his service-connected lumbar spine disability, to include any neurological manifestations and to address his claimed bilateral lower extremity swelling, numbness, and tingling symptomatology. The examiner was to identify any neurologic manifestations of the Veteran's service-connected lumbar spine disability, to include specifying any and all neurologic symptoms (e.g., neuritis, neuralgia, sensory loss, body part dysfunction, etc.) with specific reference to the nerve(s) affected and to provide an opinion as to whether any neurological symptomatology equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any nerve. Review of the report of examination conducted pursuant to the Board's March 2012 remand instructions, dated in April 2012 ("DBQ" - Disability Benefits Questionnaire) shows that lumbosacral spine arthritis and spondylolisthesis were diagnosed. The examiner also reported that the Veteran had intervertebral disc syndrome (IVDS) of the thoracolumbar spine, with at least six weeks of incapacitating episodes over the past 12 months. The presence of radiculopathy was also reported, to involve the bilateral femoral nerve roots. While the examiner indicated that the severity of this observed radiculopathy was "[m]oderate," he did not supply an opinion as to whether it equated to "incomplete" or "complete" paralysis of the affected nerve. Stegall. To this, the Board notes that the General Rating Formula for Diseases and Injuries of the Spine - see 4.71a -- directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). Pertinent to the instant claim, a 10 percent evaluation is warranted for mild incomplete paralysis of the femoral nerve; a 20 percent evaluation requires moderate incomplete paralysis of the femoral nerve; and a 30 percent evaluation requires severe incomplete paralysis of the femoral nerve. When there is complete paralysis of the quadriceps extensor muscles, a 40 percent evaluation is warranted. See 38 C.F.R. § 4.124a, Diagnostic Code 8526. An addendum medical opinion should be obtained from the April 2012 VA examiner, so that he can supply an opinion as to whether the referenced moderate femoral nerve radiculopathy equates to "incomplete" or "complete" paralysis. The Board also notes that while the April 2012 DBQ examination report indicated that imaging studies of the thoracolumbar spine had been performed and that the results were available, which results included arthritis, these referenced imagining studies are not shown to be associated with the record. Pursuant to this remand, these mentioned imaging reports should be associated with the Veteran's claims folder. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA DBQ examination obtained in this case is not adequate, as it failed to provide medical information needed to address the rating criteria relevant to this case. It seems to the Board that under the circumstances, that an addendum report should be obtained from the April 2012 VA examiner. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hence, in readjudicating this claim the RO/AMC must consider the Hart decision. TDIU As noted in the INTRODUCTION above, the Veteran's accredited representative in December 2012 asserted that the Veteran was, due to his service-connected lumbar spine disability, unable to "engage in gainful employment." Accordingly, the issue of TDIU, is before the Board. The RO should complete any development necessary to adjudicate the Veteran's TDIU claim. See Rice, 22 Vet. App. 447. The Veteran has a 60 percent rating for his lumbar spine disability, effective from April 2012. This is, at this time, his only service-connected disability. As such, the Veteran's service-connected disability meets the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider -- even though the April 2012 DBQ examiner commented that the Veteran's lumbar spine disability had an "impact" on his ability to work (i.e., he could only stand in good weather for three to four hours and then needed to lie down) -- whether the evidence demonstrates that the service-connected disability renders the Veteran unemployable. Id. For a veteran to prevail on a claim for entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has yet to undergo a VA medical examination where the examiner was tasked with the duty to render an opinion as to whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. As such, the Board finds that this issue must be remanded in order to obtain a medical opinion regarding the Veteran's employability. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Regarding a claim for TDIU, the duty to assist often requires VA to obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Board concludes that this is a case in which remand is necessary for an addendum opinion (to be supplied by the April 2012 VA DBQ examiner) that addresses this matter. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should provide the Veteran appropriate notice regarding the claim TDIU. 2. The RO/AMC should send the Veteran the specific formal application form that VA uses for TDIU -- i.e., VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, and give him a reasonable amount of time to complete and return it. 3. If any further development of the evidence is needed based on any submissions of information or evidence by the Veteran in response to the notification letter sent in accordance with #1 above or based on information provided by him on VA Form 21-8940 pursuant to #2 above, the RO/AMC should further develop the evidence in this regard. 4. The RO/AMC should again seek to obtain any VA treatment records, dating from May 2010 to the present, from the VAMC in Memphis. All obtained records should be associated with the Veteran's claims file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 5. The RO/AMC should forward the claims folder to the VA examiner who completed the April 2012 DBQ examination report (and the July 2012 addendum report). After reviewing the claim folder, to include the April 2012 examination report findings, by means of an addendum report, the physician must address the following: Whether any neurological symptomatology shown to have been manifested in the course of the April 2012 DBQ examination equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any nerve. Identify any affected nerve, and state the severity of the impairment of the nerve affected. The April 2012 VA DBQ examiner should also opine whether it is at least as likely as not the Veteran's service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation in light of his education and occupational history. The VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activity which include employment. This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. The addendum report must include a complete rationale for all opinions and conclusions expressed. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 6. In the event that the VA physician who examined the Veteran in April 2012 is unavailable, the RO/AMC should schedule the Veteran for an appropriate VA examination in order to determine the current nature and severity of all manifestations of his service-connected lumbar spine disability, to include any neurological manifestations and to address his claimed bilateral lower extremity swelling, numbness, and tingling symptomatology. The claims folder should be made available to the examiner for review. Any indicated evaluations, studies, and/or tests deemed to be necessary by the examiner should be accomplished. Based on the examination and review of the record, the examiner should identify any neurologic manifestations of the Veteran's service-connected lumbar spine disability, to include specifying any and all neurologic symptoms (e.g., neuritis, neuralgia, sensory loss, body part dysfunction, etc.) with specific reference to the nerve(s) affected. The examiner should provide an opinion as to whether any neurological symptomatology equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any nerve. Identify any affected nerve, and state the severity of the impairment of the nerve affected. The examiner should also opine whether it is at least as likely as not the Veteran's service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation in light of his education and occupational history. The VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activity which include employment. This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examination report must include a complete rationale for all opinions and conclusions expressed. 7. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled VA examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. § 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 8. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any of the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, the RO should take appropriate corrective action. 9. After the above is complete, the RO/AMC should readjudicate the Veteran's issues remaining on appeal specifically considering the TDIU claim reasonably raised in the record, and the now characterized two increased rating claims (see issues 1 and 2 as listed on title page of this decision), and whether the Veteran is entitled to a separate disability rating for neurological manifestations stemming from his service-connected lumbar spine disability. The RO/AMC must consider, concerning the increased rating claim now on appeal, whether different ratings may be warranted for different time periods in light of the decision in Hart. If the benefits sought on appeal remains adverse to the Veteran in any respect, he and his representative should be provided with a Supplemental Statement of the Case (SSOC) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ 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) (2012).