Citation Nr: 1301310 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-28 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an increased evaluation for post-operative degenerative disc disease of the lumbar spine, currently evaluated as 40 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified at an October 2012 hearing by the undersigned Veterans Law Judge held via videoconference. A transcript of that hearing is associated with the claims file. In Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the Veteran has asserted that he was unable to gain or maintain employment because of his service connected lumbar spine disability. In light of Rice, the issue of entitlement to a TDIU is properly before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran testified at the October 2012 Board hearing that his lumbar spine condition has significantly worsened in the previous two to three years since his last VA examination in February 2009. To ensure that the record reflects the current severity of the Veteran's service-connected degenerative disc disease of the lumbar spine, the Veteran should be provided a more contemporaneous VA examination. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Furthermore, during the October 2012 Board hearing, the Veteran testified that he applied for disability benefits from the Social Security Administration (SSA) because he was unable to work due to his back condition. However, the Veteran's claims file does not include his SSA records. VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the RO/AMC must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA benefits and all underlying medical records. Additionally, the Veteran testified at his October 2012 Board hearing that he had been treated at the VA Medical Center in Boise, Idaho for his lumbar spine disability. However, the most recent VA treatment records associated with the claims file are dated in July 2011. 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 a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the case must be remanded for the RO to obtain updated VA treatment records and associate with the claims file. Finally, the Board notes that at the time the Veteran filed his present claim for an increased rating for his lumbar spine disability, he asserted that he was unemployable because of his back condition. Accordingly, the RO adjudicated the TDIU claim in rating decisions dated in December 2007 and June 2010. Although the Veteran did not file a timely notice of disagreement to the June 2010 rating decision, he continues to claim that his chronic low back pain and the resulting severe limitation of motion prevent him from obtaining employment. Thus, in light of Rice, the question of TDIU is raised by the record, and it is appropriate for the Board to address this matter. The Board observes that adjudication of the Veteran's increased rating claim for degenerative disc disease of the lumbar spine likely will affect adjudication of his TDIU claim. Accordingly, the Board finds that these claims are inextricably intertwined and adjudication of the Veteran's TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and request that a copy of all materials, to include medical records, considered in conjunction with the Veteran's claim for SSA benefits be provided. Once obtained, associate these records with the claims file. If SSA notifies VA that these records are unavailable, place a copy of this notification in the Veteran's claims folder. 2. Obtain all VA treatment records from the VAMC in Boise, Idaho and any associated outpatient clinics dated from July 2011 to the present. All records and/or responses received should be associated with the claims file. 3. Schedule the Veteran for a VA spine examination to determine the current severity of his service-connected lumbar spine disability. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include those required to objectively document neurologic manifestations of the Veteran's service-connected disorder must be accomplished. As to all information requested below, a complete rationale for all opinions must be provided. The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine range of motion, in degrees, noting by comparison the normal ranges of motion of the spine. It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's lumbar spine disorder, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's lumbar spine disorder could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. Any neurological manifestations of the Veteran's service-connected lumbar spine disability must be identified, including any numbness of the legs. It must also be noted whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a, and the frequency and total duration of such episodes over the course of the past 12 months. Based on a review of the claims file, the examiner must also provide an opinion as to whether the Veteran is unable to obtain or retain employment due solely to his service-connected lumbar spine disability, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities. In this regard, the examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. 4. Notify the Veteran that he must report for the examination and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012) 5. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal taking into consideration any newly acquired evidence. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).