Citation Nr: 1310487 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 11-04 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for thoracolumbar degenerative disc disease (DDD) with symptoms of bilateral lower extremity peripheral neuropathy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1955 to October 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision issued by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, partially granted the Veteran's claim for an increased rating for thoracolumbar DDD and assigned a 20 percent rating, effective October 31, 2007 (the date the claim for an increased rating was received). A review of the Virtual VA paperless claims processing system reveals VA treatment records dated through November 2011; such records were considered by the agency of original jurisdiction (AOJ) in the January 2013 supplemental statement of the case (SSOC). The Board remanded the instant claim for an increased rating in August 2012. The Veteran has asserted that he is not employable, at least in part, due to his service-connected thoracolumbar spine disorder. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. 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. In light of Rice, a claim for TDIU has been added to this appeal. 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, D.C. VA will notify the Veteran if further action is required. REMAND The Board is cognizant of the fact that the Veteran's case has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding these claims again unless it was essential for a full and fair adjudication of his claims. In August 2012, the Board remanded the instant claim for an increased rating to allow the Veteran's outstanding and non-duplicative VA treatment records to be obtained and to request that the Veteran to complete an appropriate authorization form to allow VA to obtain private treatment records. A VA examination was then to be conducted to determine the current severity of the Veteran's thoracolumbar spine disorder. Specifically, the examiner was instructed to indicate whether this disorder resulted in the partial or complete paralysis, neuralgia or neuritis of any nerve and to determine the severity of such paralysis. In addition, the examiner was asked to address the impact of the Veteran's thoracolumbar spine disorder on his ability to work. Such a VA examination was conducted in October 2012. The examiner, following a physical examination and a review of the Veteran's claims file, noted that the Veteran's sensory neurologic deficits were more consistent with "diabetic retinopathy" than with lumbar radiculopathy. However, the examiner further opined he was unable to determine with any degree of certainty, and without resorting to mere speculation, to which of these conditions the Veteran's symptoms were attributable without obtaining a nerve conduction study. It does not appear from a review of the claims file that such a study has been scheduled or conducted. Such results are necessary to properly rate the Veteran's claim for an increased rating. The Board notes the August 2012 opinion from Dr. P. Y., a private chiropractor, which stated that the Veteran's left sciatic radicular pain was related to service-connected low back pain. However, this provider did not address the impact, if any, of the Veteran's diabetes mellitus on his symptoms or the Veteran's right lower extremity symptoms. In addition, the provider did not determine the severity of this neurologic deficit. This private report is therefore insufficient to properly rate the Veteran's claim for an increased rating. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where ... the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. In light of the deficiencies detailed above, this matter must be remanded to ensure compliance with the Board's previous remand. In addition, and as detailed in the Introduction, the Veteran has alleged that he is unable to work due to his service-connected disabilities, particularly his service-connected thoracolumbar spine and shoulder disabilities. The Board notes that the October 2012 VA examiner stated that the Veteran's thoracolumbar spine effected his occupational activities by causing problems with his lifting and carrying as well as pain, but did not otherwise provide an opinion as to the Veteran's ability to work. The Court has held that the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994); see 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a). Such an opinion has not yet been obtained, but is required to adjudicate this inferred claim. Finally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file. 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. The RO/AMC should obtain the Veteran's updated VA treatment records. Such records dated through November 2011 are located in the Veteran's Virtual VA claims file. Any response received in association with this request should be memorialized in the Veteran's claims file. 2. Following the completion of the above development, and the receipt of any outstanding records, the RO/AMC should schedule the Veteran for a VA examination to determine the current extent and severity of the service-connected thoracolumbar spine disability. All appropriate tests and studies should be performed, including electromyography (EMG) testing or nerve conduction studies (NCS), to assess neurological impairment. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should report the ranges of motion in degrees and note the point in the range of motion when pain becomes apparent. The examiner should also determine whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should report whether the thoracolumbar degenerative disc disease produced related neurological manifestations. If so, the examiner should indicate whether the degenerative disc disease has required any periods of doctor prescribed bedrest. The examiner should address whether the Veteran has developed any neurologic abnormality (such as radiculopathy, peripheral neuropathy or sensory impairment) that can be associated with the service- connected thoracolumbar degenerative disc disease. If so, please state the neurologic diagnosis or diagnoses; and, if any, identify the specific extremity or extremities involved. This determination should also be expressed, if feasible, in terms of mild, moderate, or severe for each such extremity affected by radiculopathy, peripheral neuropathy, or sensory impairment. In addition, the examiner should determine whether it was as least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, singularly or combined, would prevent him from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. In answering the question posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. If any benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case, before the claims file is returned to the Board, if otherwise in order. 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). _________________________________________________ MARJORIE A. AUER 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).