Citation Nr: 1300957 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-40 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a thoracolumbar spine disability (lumbosacral strain). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michelle A. Marshall, Attorney WITNESSES AT HEARING ON APPEAL Appellant & Mother ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active duty service from April 1983 to August 1983 and from March 1984 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision issued by the Cleveland Ohio Regional Office (RO) of the Department of Veterans Affairs (VA) which, continued to rate the Veteran's service-connected lumbosacral strain as 20 percent disabling. In May 2012, the Veteran and his mother testified before the undersigned at a hearing at the local RO (Travel Board); a hearing transcript has been associated with the claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND There is evidence that the Veteran's service-connected thoracolumbar spine disability may have worsened since his last VA examination in January 2012. For example, during his May 2012 Travel Board hearing, the Veteran reported that while bending his back he would reach a "sticking point" due to severe pain and was only able to bend to approximately 20 degrees. He also reported that he experienced radiation, pain, tingling, and weakness in his legs, which was worse on the left side, as well as pain in the groin area. However, on the January 2012 VA examination, the Veteran was able to perform forward flexion to 40 degrees, including with repetitive motion, and there were no signs of radicular pain or any other signs or symptoms due to radiculopathy. A Veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). The Court has held that entitlement to a TDIU is an element of initial ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised 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. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The January 2012 VA examiner noted that the Veteran's thoracolumbar spine condition impacted the Veteran's ability to work. More specifically, during his July 2012 hearing, the Veteran and his mother indicated that the Veteran's service-connected thoracolumbar spine disability caused him to lose jobs as a plumber and pipefitter due to the physical nature of the job. He was unable to carry toilets, hot water tanks, etc, He also reported that he could not get under sinks to work because he was not be able to get up due to his back. Therefore, the issue of TDIU is raised as part of the increased rating claim and is included as part of the appeal. Rice; Roberson. The Veteran is presumed to be seeking the highest rating possible, and there is evidence of a medical disability. Thus, given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice and the issue is properly before the Board as part of the appeal for an increased rating for a thoracolumbar spine disability. The Court has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). While the January 2012 VA examiner indicated that the Veteran's thoracolumbar spine disability impacted his ability to work, there is no explicit opinion as to whether the Veteran's service-connected thoracolumbar spine disability is sufficient to preclude gainful employment. The Veteran's percentage ratings do not currently meet the scheduler requirements for a TDIU under 38 C.F.R. § 4.16(a) (2012). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should ask the Veteran to complete a formal application for a TDIU and report his education and employment history and his earnings history. 2. The AOJ should send the Veteran and his representative VCAA notice regarding entitlement to a TDIU. 3. After the completion of the development specified in paragraph numbers 1 through 2 above, schedule the Veteran for a VA examination to evaluate the current severity of the service-connected thoracolumbar spine disability. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The ranges of thoracolumbar spinal motions should be reported in degrees. The examiner should also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner should express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should report whether there is any ankylosis of the thoracolumbar spine or entire spine. If ankylosis is present, the examiner should specify whether it is favorable or unfavorable and the angle at which the spine is held. The examiner should comment on the Veteran's May 2012 testimony regarding a "sticking point" with bending motion. The examiner should report the total duration of any incapacitating episodes due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician during the past 12 months. The examiner should also specify the nerves affected by the thoracolumbar spine disability and provide an opinion as to the severity of any associated paralysis, neuritis, or neuralgia. The examiner should also report the nature and severity of any bladder or bowel impairment associated with the service-connected thoracolumbar spine disability, including whether the use of any appliances or absorbent materials is required for a voiding dysfunction and the frequency at which any such absorbent materials must be changed. The examiner should provide an opinion as to whether the Veteran's service connected thoracolumbar spine disability would as likely as not prevent him from engaging in gainful employment for which his education and occupational experience qualify him. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner should provide the reasons and bases for all opinions in the examination report. 4. The AOJ should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 5. If, after completion of the above instructions, there is any period when the Veteran was unemployed and does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) , the AOJ should refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). 6. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case with consideration of all evidence associated with the claims file and Virtual VA eFolder since the claim was last adjudicated in February 2012. The Veteran and his representative should be afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, if 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. 2012). _________________________________________________ J. A. MARKEY 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).