Citation Nr: 1308014 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-41 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial compensable disability rating for degenerative disc disease (DDD) of the lumbar spine with facet arthropathy prior to September 29, 2010, and evaluated as 10 percent disabling thereafter. 2. Entitlement to an increased disability rating in excess of 50 percent for right hip dysplasia with degenerative joint disease (DJD) status post right total hip arthroplasty. 3. Entitlement to an increased disability rating in excess of 10 percent for overuse, compensatory gluteus medius strain of the left hip, with degenerative changes. 4. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to April 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied entitlement to a TDIU; granted service connection for the Veteran's lumbar spine disability, and assigned a noncompensable disability rating; continued a 50 percent disability rating for Veteran's right hip disability; and continued a 10 percent disability rating for the Veteran's left hip disability. In April 2010, the Veteran submitted a notice of disagreement (NOD) with these determinations, and timely perfected his appeal in October 2010. Subsequently, in an October 2010 rating decision, the RO increased the Veteran's disability rating for DDD of the lumbar spine with facet arthropathy to 10 percent, effective September 29, 2010. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of increased disability ratings for lumbar spine, right hip, and left hip disabilities, and entitlement to a TDIU. A. Left hip, Right Hip, and Lumbar Spine Disabilities The Veteran was last afforded a VA examination in September 2010 in order to establish the severity of his service-connected left hip, right hip, and lumbar spine disabilities. On the October 2010 Substantive Appeal, the Veteran reported that he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. Further, he stated that he was unable to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Both of his hips and lower back became painful on use, and he had weakness in both hips and back. The Veteran reported that although the April 2009 examiner stated he could cross his right leg over his left, he was unable to do so. He also stated that he had less movement than usual in the right hip, and was unable to put on socks and shoes. Moreover, he stated that he could not bend his hip and had painful arthritis in both the hip and lower back. The Veteran also reported that he was unable to stand or sit for long periods of time, making gainful employment impossible. Lastly, he reported that he had severe residuals of weakness, pain, and limitation of motion. In this particular case, the September 2010 VA examinations are too remote in time to address the current severity of the Veteran's service-connected left hip, right hip, and lumbar spine disabilities. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo VA examinations to assess the current nature, extent and severity of his left hip, right hip, and lumbar spine disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). B. TDIU Additionally, the Veteran contends that he is unemployable due to his service-connected disabilities, to include gluteus medius strain of the left hip with degenerative changes, right hip dysplasia with DJD, and DDD of the lumbar spine. VA regulations provide for a TDIU rating when the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a) (2012). In this case, service connection is in effect for gluteus medius strain of the left hip with degenerative changes, rated as 10 percent disabling; right hip dysplasia with DJD, rated as 50 percent disabling; and DDD of the lumbar spine, rated as 10 percent disabling. As such, the Veteran's combined disability evaluation is 70 percent, effective September 29, 2010. Accordingly, the Veteran meets the percentage requirements of 38 C.F.R. § 4.16 because at least one disability is ratable at 40 percent or more, right hip dysplasia with DJD, and his additional service-connected disabilities bring his combined disability rating to 70 percent or more. Therefore, the issue is whether his service-connected disabilities precludes him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other Veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The September 2010 VA examiners stated the effect of the Veteran's service-connected disabilities on his employability; However, the VA examinations requested below to determine the current level of severity of the Veteran's service-connected left hip, right hip, and lumbar spine disabilities may show a different disability picture than previously shown at the September 2010 examinations. Therefore, the Board finds that the Veteran's claim for a TDIU rating is inextricably intertwined with his pending increased rating claim. The TDIU claim cannot be reviewed while those pending claims remain unresolved. Thus, adjudication of the TDIU claim must be held in abeyance pending further development of the Veteran's increased rating claim. Additionally, as the Veteran has claimed his service-connected conditions have worsened, he should be afforded another VA examination and opinion to ascertain the current impact of all of his service-connected disabilities on his unemployability. Specifically, the examiner should consider the Veteran's level of education, special training, and previous work experience in making this determination. Lastly, a remand is also necessary to obtain any outstanding VA medical records. The record reflects that the Veteran was receiving periodic treatment at the VA through July 2009. It is unclear to the Board if the Veteran received treatment at the VA after July 2009 for his back and hip disabilities. Because it appears that there may be outstanding VA medical records dated after July 2009 that may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). The appellant should also be offered the opportunity to submit any private treatment records in support of his claim. Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any of the Veteran's outstanding VA treatment records concerning the disabilities on appeal dated from July 2009 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2) After the foregoing, the Veteran should be scheduled for a VA examination to determine the current level of severity of his service-connected overuse, gluteus medius strain of the left hip with degenerative changes and right hip dysplasia with DJD. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary testing should be provided. The examiner should write a comprehensive report discussing the current severity of the Veteran's left and right hip disabilities, with particularity to the criteria for the appropriate diagnostic codes. All necessary testing should be provided, including range of motion tests on thigh extension and flexion. The examiner should note whether-upon repetitive motion of the Veteran's hips-there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the left and right hips are used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. Additionally, the examiner should specifically state if the Veteran's left hip and/or right hip disabilities display: a. The presence of any hip ankylosis and, if present, characterize it as favorable or unfavorable. b. Whether the Veteran has a flail joint of the hip. c. Whether there is impairment of the femur that is manifested by: fracture of shaft or anatomical neck with nonunion, with loose motion or with nonunion, without loose motion, weight bearing preserved with aid of brace; fracture of surgical neck, with false joint; or malunion with marked knee or hip disability, with moderate knee or hip disability, or with slight knee or hip disability. d. In reference to the Veteran's right hip replacement - Moderately severe residuals of weakness, pain or limitation of motion; markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis; or following implantation of prosthesis with painful motion or weakness such as to require the use of crutches. Furthermore, the examiner should also specifically comment on the effects of the Veteran's left and/or right hip disabilities on his occupational functioning and daily activities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Additionally, the Veteran should be scheduled for a new VA spine examination to determine the current level of severity of the Veteran's DDD of the lumbar spine. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted, to include x-rays. All pertinent pathology found on examination should be included in the evaluation report. In particular, the examiner should note the presence or absence of favorable or unfavorable ankylosis of the Veteran's entire lumbar spine, and of unfavorable ankylosis of his entire spine. Also, the examiner should discuss the Veteran's neurological pathology related to his service-connected DDD of the lumbar spine. The examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Also, the examiner should provide the ranges of motion of the Veteran's lumbar spine. The examiner should note whether-upon repetitive motion of the Veteran's back-there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. Furthermore, the examiner should also specifically comment on the effects of the Veteran's lumbar spine disability on his occupational functioning and daily activities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) After the above requested examinations, the AMC/RO should obtain a VA medical opinion to evaluate the impact of ALL of the Veteran's service-connected disabilities on his employability. The claims folder must be reviewed by the examiner in conjunction with the examination and the review should be noted in the examination report. The examiner should review all evidence of record, to include VA and private treatment records and examination reports, and opine as to whether the Veteran's service-connected disabilities (right hip dysplasia with DJD, gluteus medius strain of the left hip with degenerative changes, DDD of the lumbar spine), rendered him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims. The AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, 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). These claims 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). _________________________________________________ WAYNE M. BRAEUER 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).