Citation Nr: 1308077 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-19 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for post-operative degenerative disc disease of the thoracolumbar spine with lumbar radiculopathy. 2. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from August 1965 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A Board decision in January 2011 denied an increased rating for the Veteran's lumbar spine disorder and remanded the issue of entitlement to a TDIU. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) insofar as the Board denied the issue of an increased rating. In a Memorandum Decision dated in August 2012, the Court vacates the Board's denial of the increased rating claim and remanded the case for readjudication in accordance with the JMR. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the August 2012 Memorandum Decision, the Court concluded that the Board did not adequately address the functional loss experienced by the Veteran with use of her spine as interpreted by DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board observes that the Veteran was last afforded a VA examination specifically for her lumbar spine in April 2008. Pursuant to the Board's January 2011 Remand of the issue of entitlement to a TDIU, a VA examination was obtained in February 2011 addressing the effect that the Veteran's lumbar spine disability has on her employability. Although this examination report includes some medical findings pertinent to rate the Veteran's spine disability, this examination did not address the functional loss experienced by the Veteran as interpreted in DeLuca. Because the last VA examination for the Veteran's spine that took into account the functional loss experienced upon use occurred almost seven years ago, the Board finds that the record, as it currently stands, does not adequately reveal the present state of the lumbar spine disability. The Board finds, therefore, that a remand of this increased rating claim is necessary to secure an examination to ascertain the current level of this disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). As for the Veteran's TDIU claim, the evidence shows that she claims unemployability as a result of her lumbar spine disability. See, e.g., February 2008 claim. As findings from an examination of her lumbar spine could provide relevant evidence as to whether the award of a TDIU is warranted, the Board finds that the issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, another remand of the TDIU claim is also necessary. The most recent VA treatment records from the VA Medical Center (VAMC) in Durham, North Carolina are dated in January 2012. On remand, records of any VA psychiatric treatment that the Veteran received since January 2012 should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service lumbar spine treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Durham VAMC. If any such records identified by the Veteran are not available, she should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, accord the Veteran an appropriate VA examination to determine the current level of severity of her service-connected post-operative degenerative disc disease of the thoracolumbar spine with lumbar radiculopathy. Her claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. All pertinent manifestations of the service-connected lumbar spine disability should be annotated in the examination report. The examiner should: A. Provide the range of flexion of the Veteran's thoracolumbar spine and comment on the degree of functional losses such as pain, weakness, excess fatigability, incoordination, and flare-ups. All functional losses should be equated to additional loss of motion (beyond that shown clinically). B. Discuss any associated ankylosis (favorable or unfavorable) of the Veteran's thoracolumbar spine, any unfavorable ankylosis of her entire spine, as well as the frequency (in the past 12 months) of any incapacitating episodes. See 38 C.F.R. § 4.71a, Note 1 following Diagnostic Code 5243 [an incapacitating episode is 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]. C. Discuss any adverse neurological abnormalities that are the result of the Veteran's service-connected post-operative degenerative disc disease of the thoracolumbar spine other than the already service-connected sensory deficits of each lower extremity. The examiner should identify any nerve(s) affected and determine if that symptomatology is best characterized as "slight," "moderate," "moderately severe," or "severe." 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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). _________________________________________________ MICHAEL MARTIN 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).