Citation Nr: 1311020 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 12-02 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder. 2. Entitlement to a rating higher than 20 percent for mechanical low back pain. 3. Entitlement to a compensable rating prior to January 24, 2011, and a rating higher than 10 percent beginning on January 24, 2011, for hypertension. 4. Entitlement to a rating higher than 10 percent for right knee osteochondroma. 5. Entitlement to a rating higher than 10 percent for a right ankle spur. 6. Entitlement to a rating higher than 10 percent for a left ankle fracture. 7. Entitlement to a compensable rating for lacerations to the lip and lower right eyebrow. 8. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1979 to July 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in September 2009, September 2010, and July 2011 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, September 2010, January 2011, and July 2011, the Veteran expressed his disagreement with the decisions. In January 2012, the RO issued him statements of the case, after which he perfected his appeal to the Board with the filing of a substantive appeal in January 2012. During the pendency of the appeal, the RO in a July 2011 rating decision granted a 10 percent rating for hypertension, effective in January 2011. The Veteran continued his appeal for a higher rating. In July 2012, the Veteran appeared at the RO and testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 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 in Washington, DC. REMAND A preliminary review of the record shows that it is incomplete and that further development of the facts under the duty to assist is needed before a decision may be made in this case. Specifically, a psychiatric note dated in November 2011 indicates that the Veteran verified his address and telephone number and then reported he was getting "his SSD along with his SC compensation which helps financially." It therefore would appear that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA), but the claims file does not contain records from SSA, which could be pertinent to the Veteran's current increased rating claims. When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from the SSA. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when "there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits"); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (finding that VA's duty to assist specifically includes requesting information from other Federal departments). In view of the need to remand for SSA records, the Board believes that certain other development is also appropriate to fully assist the Veteran. At his hearing in July 2012, the Veteran testified that although he recently obtained a job working at a hospital, it was on a part-time basis only, and that his service-connected disabilities - both mental and physical - essentially prevented him from obtaining and maintaining substantially gainful employment. (Transcript, pp. 6-8.) The RO last adjudicated a claim for a total disability rating for compensation based on individual unemployability in March 2012. It appears that the Veteran has since raised the claim again, and as such, the RO should develop it. The Board is remanding this claim rather than referring it back to the RO for its development for the reason that the Board finds that it has jurisdiction of that issue. The request for a total disability rating for compensation based on individual unemployability is not deemed a separate claim for benefits, as it is considered part of the increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a total disability rating for compensation based on individual unemployability, either stated or implied by a fair reading of the claim or of the evidence of record, is not a separate claim for benefits, but part of the claim for increase). At the hearing, the Veteran indicated that he received medical treatment only from the VA. The most recent VA outpatient treatment records in the file are dated in February 2012, and they refer to future appointments (particularly in the psychiatry clinic). The RO should ensure all pertinent treatment records of the Veteran have been obtained from VA facilities and associated with the claims file. Also at the hearing, the Veteran testified that he believed he was "down," or incapacitated, more than two to four weeks a year in relation to his lumbar spine disability. When evaluating intervertebral disc syndrome, under 38 C.F.R. § 4.71a, Diagnostic Code 5243, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating. It is not clear whether the Veteran has a disc syndrome related to his service-connected low back pain. A private lumbar MRI in August 2007 indicates moderately severe left neuroforaminal stenosis, but a VA lumbar MRI in September 2009 found intervertebral disc heights to be maintained. Given the Veteran's testimony, which suggests a possible worsening of his low back disability, there is a need to verify the current severity of the disability, and thus a reexamination is required. 38 C.F.R. § 3.327(a). Likewise, the Veteran should undergo a re-examination of his service-connected laceration to the lip and right lower eyebrow. During the hearing, the Veteran asserted that his lip scar was symptomatic (he said it had tenderness). A VA examination in June 2011 to evaluate his service-connected skin disability addressed only the scar of the right eyebrow and did not mention the lip scar, and thus it was incomplete for rating purposes. 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. Ensure VCAA compliance with the duty to notify and the duty to assist on the claim for a total disability rating for compensation based on individual unemployability. 2. Request records from the Social Security Administration in regard to the Veteran's application for benefits, the decision awarding benefits, and the records considered in deciding the claim for benefits. If the records do not exist or further efforts to obtain the records would be futile, document that fact in the record and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Obtain all VA records relative to the Veteran's treatment for service-connected disabilities on appeal for the period from February 2012 to the present, from all VA facilities where he has been treated. 4. Schedule the Veteran for a VA spine examination to evaluate the severity of the service-connected mechanical low back pain. The claims folder should be made available to the examiner for review. All necessary tests and studies should be accomplished. All clinical findings in regard to evaluating he Veteran's low back disability in accordance with applicable rating criteria, should be set forth in the report. The VA examiner is asked to describe the following: (a) range of motion in degrees of flexion of the lumbar spine, and any additional functional loss (expressed in terms of additional degrees of limited motion) due to pain, painful movement, weakened movement, fatigue, or repetitive movement of the lumbar segments of the spine; if possible, the examiner should estimate any additional limitations to be expected during flare-ups; (b) any associated objective neurologic abnormalities, to include whether the disability is manifested by radiculopathy (with any such a finding to be characterized as incomplete and mild, moderate, or severe or complete); and (c) if an intervertebral disc syndrome is deemed to be related to the service-connected low back pain, any incapacitating episodes necessitating bed rest and treatment by a physician, along with the duration of any such episodes. The VA examiner is also asked to express an opinion on the effect the service-connected disability has on the Veteran's employability. 5. Schedule the Veteran for a VA skin examination to evaluate the severity of the service-connected laceration to the lip and lower right eyebrow. The claims folder should be made available to the examiner for review. Within the report, the examiner is asked to provide the measurements (length and width) of the residual scars and determine whether the scars are unstable (i.e., one where there is frequent loss of covering of skin over the scar), painful, elevated or depressed on palpation, and adherent to underlying tissue. 6. Review the records assembled in the claims file, and determine if the evidence suggests that the Veteran's service-connected posttraumatic stress disorder, hypertension, right knee disability, or ankle disabilities have increased in severity. If so, schedule the Veteran for an appropriate examination to evaluate the current severity of the disability. Any request for a re-examination should direct the examiner to render an opinion as to the effect of the service-connected disability on the Veteran's ability to secure and follow substantially gainful employment. If deemed appropriate, the Veteran should be scheduled for a general medical examination for the purpose of addressing the question of whether or not he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, in which case the examiner should consider the impact of all of the service-connected disabilities, taken together, but not the effects of the Veteran's age or the effects of any non-service connected disabilities. A complete rationale must be provided for any opinion offered. 7. After the above development is completed, adjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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 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). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).