Citation Nr: 1308910 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 05-27 490 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for status post cervical vertebrae fracture with radicular right shoulder pain, cervical neuropathy, spondylosis, and degenerative disc disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION The Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the VA RO in Los Angeles, California. In September 2008, the Board issued a decision denying the Veteran's claim for an evaluation in excess of 30 percent for status post cervical vertebrae fracture with radicular right shoulder pain, cervical neuropathy, spondylosis, and degenerative disc disease. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Remand, the Court issued an order in July 2009 that remanded the case to the Board to provide the Veteran with a new VA examination, which was accomplished as directed in 2010. In June 2007, the Veteran testified at a Travel Board hearing held at the RO. A transcript of the hearing has been associated with the Veteran's claims folder. Unfortunately, the judge who conducted that hearing has since retired from the Board. The Veteran was sent a letter informing him of this and asking him if he wished to attend another hearing before a Veterans Law Judge who would render a determination in his case. He responded that he desired a Video Conference hearing, and he subsequently testified at a hearing before the undersigned Veterans Law Judge in January 2013. In a June 2012 remand, the Board determined that the issue of entitlement to a TDIU had been raised by the record; and it has therefore been listed as an issue. Rice v. Shinseki, 22 Vet. App. 447 (2009). At his January 2013 hearing, the Veteran testified that he had a "PTSD claim" pending. It does not appear that a claim for service connection for PTSD has ever been adjudicated and therefore a claim for service connection for PTSD is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 At his hearing before the Board in January 2013, the Veteran specifically asserted that his cervical spine disability had worsened since his last VA examination in November 2010. Although this case has been pending for quite some time, in light of his testimony, a remand is necessary to provide the Veteran with a contemporaneous examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). He also stated that he had not worked in ten years because of pain and seizures; but he asserted that his neck pain had an impact on his employability as well. The Veteran testified that he had recently begun receiving Social Security Administration (SSA) disability benefits. He was unsure whether the records were germane to his claim for an increased neck rating, but given that the SSA claim was apparently filed during the pendency of his VA appeal, the records should be obtained, as they may be relevant to the VA appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Finally, it is not clear as to whether VA treatment records exist that are not part of the record. The Veteran's representative submitted records from the West LA VA Medical Center dated from February 2011 to March 2012, but they were primarily of diagnostic test results, with no corresponding outpatient treatment records. In Virtual VA, there is an October 2010 rating decision that cites to treatment records from West LA dated from September 2009 to October 2010, but such records are not in Virtual VA or the paper claims file. It may be that the RO has established a temporary folder due to the length of time that this case has been pending, and that additional evidence is in that folder. Regardless, it certainly appears that the Veteran has consistently been getting VA medical treatment, and the last records in the paper claims file are from late 2007. Again, there are no outpatient records in Virtual VA, so this case must be remanded to obtain the Veteran's complete VA treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all records from the Social Security Administration, to include all awards of disability benefits and any underlying records used in reaching the determination. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 2. Obtain the Veteran's complete treatment records from the West LA VA Medical Center dated from 2008 to the present and associate them with the appeal, whether with the paper file or in Virtual VA. 3. Schedule the Veteran for an examination to evaluate the nature and severity of his service connected cervical spine disability. The entire claims file, including a copy of this remand, should be made available to the examiner. The examiner should specifically: * indicate whether the Veteran's cervical spine is ankylosed, and, if so, whether the ankylosis is favorable or unfavorable; * determine the range of motion in the Veteran's neck, including an assessment of whether pain or functional limitation following repetitive motion causes an additional decrease in the range of motion; * diagnose any neurological disability resulting from the Veteran's cervical spine disability (addressing the Veteran's assertion at his 2013 Board hearing that he has neuropathy in his neck), and, if a separate neurological disability is diagnosed, assess its severity (e.g. mild, moderate, moderately severe, or severe); and * determine whether without taking the Veteran's age into account, it is at least as likely as not (50 percent or greater) that his service connected cervical spine disability alone is of such severity as to preclude him from obtaining or maintaining any gainful employment (consistent with his education and occupational experience). 4. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). _________________________________________________ MICHELLE L. KANE 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).