Citation Nr: 1304597 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-30 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbar disc disease at L5-S1. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to November 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from July and October 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, continued a 20 percent evaluation for service-connected lumbar disc disease at L5-S1. In August 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 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 Board finds that additional development is necessary before a decision may be rendered in this case. During the August 2012 hearing, the Veteran testified that his low back disability had increased in severity since the last VA examination in January 2010 and was productive of daily pain that radiated into his bilateral lower extremities. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran is also competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Therefore, upon remand, the Veteran should be provided a VA examination to determine the current severity of his service-connected lumbar disc disease. Entitlement to a TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record contains evidence that the Veteran's service-connected low back disability has significantly impaired his employment. The Veteran testified in August 2012 that he has not worked since December 2002, when he left his employment in swimming pool construction due to his lumbar disability. Thus, the issue of TDIU is properly before the Board. Entitlement to TDIU is dependent upon a determination of the impact of service-connected disabilities upon the Veteran's ability to obtain or retain substantially gainful employment. TDIU therefore remains inextricably intertwined with the still-pending claim for increased evaluation. Harris v. Derwinski, 1 Vet. App. 180 (1991). Adjudication of TDIU entitlement must be deferred until the other issues are addressed. On remand, the Veteran be afforded the opportunity to submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which contains information important to a claim for TDIU. Further, the duty to assist 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). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.. 2. Ask the Veteran to identify all medical care providers who treated him for back disability since January 2010. After securing the necessary release, obtain these records. 3. After completion of the foregoing, schedule the Veteran for a VA examination to determine the current severity of all manifestations of his service-connected lumbar disability. The claims file must be provided to the examiner and reviewed in conjunction with the examination. The examination must include range of motion studies of the thoracolumbar spine. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. The examiner should further address whether, and if so to what extent, there is ankylosis of the thoracolumbar spine. The examiner should also discuss whether the Veteran's disability has resulted in doctor-prescribed bedrest; if so, the examiner should address the frequency and duration of such bedrest in the past 12 months. The examiner should also identify any evidence of neurological disorders, including neuropathy/radiculopathy of the bilateral lower extremities due to the service-connected spine disability. Any sensory or motor impairment in the lower extremities due to service-connected disability should be identified. The examiner should provide an opinion with respect to any symptoms due to nerve root impingement as to whether they are mild, moderate, moderately severe, or severe. Finally, the examiner should provide an opinion concerning the impact of the Veteran's service-connected disabilities either singly or together on his ability to secure or follow a substantially gainful occupation. The Veteran is service-connected for lumbar disc disease at L5-S1, currently rated as 20 percent disabling, and postoperative residuals of an inguinal hernia, rated as 10 percent disabling. If the examiner is not qualified to provide an opinion addressing the combined occupational impairment of the Veteran's service-connected disabilities, the claims file should be referred to a VA examiner with the appropriate expertise for the requested opinion. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Readjudicate the claims on appeal. If the benefits sought on appeal are not fully granted the RO should issue a SSOC (to include the issue of entitlement to TDIU if not granted), before returning the case to the Board, if otherwise in order. 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). 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). _________________________________________________ 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).