Citation Nr: 1311340 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-24 728 ) 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 40 percent for residuals of a fracture of the left tibia and fibula. 2. Entitlement to a rating in excess of 40 percent for degenerative disc disease of L5-S1 and L4-5. 3. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from August 1964 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied ratings in excess of 40 percent for the Veteran's left tibia and fibula and back disabilities, a rating in excess of 10 percent for varicose veins of the left leg, and entitlement to a TDIU. The RO also declined to reopen his claim for service connection for right hip and leg disorders as due to his service-connected left lower extremity disability. The Veteran submitted a timely notice of disagreement (NOD) only as to the matters of service connection for right hip and leg disorders and increased ratings for his back and left tibia and fibula disability. In a June 2008 rating decision, the RO granted service connection for osteoarthritis of the right hip and knee. The RO's action represents a full grant of the benefits sought as to the Veteran's claims for service connection for right hip and knee disorders. He perfected an appeal only as to the matters of increased ratings for his lumbar spine and left lower extremity disabilities. However, in a February 2013 written statement, the Veteran's attorney indicated that the issues on appeal included entitlement to a TDIU and an increased rating for varicose veins of the left leg. Medical evidence to support the claim regarding varicose veins was submitted at that time. The Board construes the attorney's statement as a new claim for a rating in excess of 10 percent for varicose veins of the left leg and refers it to the Agency of Original Jurisdiction (AOJ) for appropriate development and adjudication. The Veteran did not perfect an appeal as to the RO's September 2007 denial of his claim for a TDIU but, in February 2013, his attorney submitted new medical evidence to support the claim of unemployability due to his service-connected lumbar spine and left and right lower extremity disabilities. See e.g., February 2013 Veteran's Memorandum of Law at page 5. See 38 C.F.R. § 3.156(b) (2012); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (to the effect that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial rating for a disability). See also Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As such, the matter of this new claim of entitlement to a TDIU is also on appeal in the present case. 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 The Veteran seeks increased ratings for his lumbar spine and left lower extremity disabilities. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Given that the Veteran was last examined for his lumbar spine and left lower extremity disabilities in April 2008, nearly five years ago, the Board finds that he should be afforded new VA examinations to determine the current severity and all manifestations of his service-connected degenerative disc disease of the lumbar spine and residuals of a fracture of the left tibia and fibula. The Veteran is currently in receipt of the highest schedular rating available for his left tibia and fibula disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). However, while the Board cannot assign an extra-schedular rating in the first instance, it can specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. In fact, although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board."). Under these circumstances, the Board finds that this case should be referred to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service for consideration of the Veteran's entitlement to a rating in excess of 40 percent for residuals of a fracture of the left tibia and fibula, on an extra-schedular basis under 38 C.F.R. § 3.321(b) (2012). Further, the claims file includes treatment records from the VA outpatient clinic (VAOPC) in Orlando and the VA medical center (VAMC) in Tampa, dated to May 2008. However, in February 2013, the Veteran's attorney submitted relevant VA treatment records, evidently from the VAMC in Orlando, regarding the Veteran's left ankle and lumbar spine disabilities, dated in October and December 2011. Thus, there appear to be some pertinent VA medical records that may affect the disposition of the instant claims that are not yet associated with the claim file. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) Finally, the law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Additional development is required as to the TDIU claim as well. VA may not reject the Veteran's TDIU claim without producing evidence, as distinguished from mere conjecture, that his disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). This may include an examination, which includes an opinion as to what, if any, affect the Veteran's service-connected disabilities have on his ability to work. Friscia, 7 Vet. App. at 297. In a March 2012 report, Dr. James K. Shea opined that the severity of the Veteran's low back and left leg disabilities prevented him from being able to follow a substantially gainful employment. Dr. Shea also opined that the Veteran was unable to follow a substantially gainful occupation due to his service-connected injuries. Thus, the Board believes a VA examination is warranted as to the Veteran's claim for a TDIU. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records regarding the Veteran's treatment at the VAMCs in Tampa and Orlando and at the VAOPC in Orlando for the period from May 2008 to the present and from any additional VA and non-VA medical provider identified by him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 2. After the development above has been accomplished, schedule the Veteran for appropriate VA medical examination(s) (i.e., orthopedic, neurologic, vascular, podiatry) to assess the current severity and all manifestations of his service-connected degenerative disc disease of the lumbar spine and address the effects of all of his service-connected disabilities (degenerative joint disease of the lumbar spine, residuals of a fracture of the left tibia and fibula, varicose veins of the left leg, and osteoarthritis of the right hip and knee) on his capacity to obtain and hold employment. The examiner(s) should be provided with the Veteran's claims file for review. All indicated tests and studies should be performed and all clinical findings reported in detail. After examining the Veteran and reviewing the claims file, the examiner(s) should address the following: a. The examination of the spine should include range of motion studies. The examiner should specifically state if unfavorable ankylosis of the entire spine or entire thoracolumbar spine is present. The examiner should report any specific information as to the frequency and duration of incapacitating episodes in the past 12 months, and a description of all neurologic manifestations, to include, but not limited to, radiating pain into an extremity, and bowel or bladder impairment. b. The examiner should comment on the impact that the Veteran's service-connected degenerative disc disease of the lumbar spine has on his ability to work. The examiner should attempt to distinguish the impairment related to his service-connected disability and other nonservice-connected disabilities. The examiner should provide supporting rationale for this opinion. c. With regard to any neurological disability resulting from the service- connected lumbar disability, the specific nerve(s) affected should be specified, together with the degree of paralysis caused by service-connected disability. d. The examiner should opine whether the Veteran is unable to obtain or retain employment due only to his service-connected disabilities (degenerative joint disease of the lumbar spine, residuals of a fracture of the left tibia and fibula, varicose veins of the left leg, and osteoarthritis of the right hip and knee), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. e. The examiner(s) should explain the reasons for the conclusions reached. In rendering an opinion, the examiner(s) is (are) requested to address the opinion rendered by Dr. James K. Shea on March 5, 2012 (to the effect that the severity of the Veteran's low back and left leg condition prevented him from being able to follow substantially gainful employment and that the Veteran was unable to follow a substantially gainful occupation as a result of his service-connected injuries). 3. After completion of the above, submit the claim for a rating in excess of 40 percent for residuals of a fracture of the left tibia and fibula to the Director of Compensation and Pension Service for an extra-schedular consideration under 38 C.F.R. § 3.321(b). Either the Under Secretary or the Director must review the evidence of record to determine whether the Veteran's service-connected left lower extremity disability has created marked interference with employment or frequent periods of hospitalization warranting an extra-schedular rating. A review of the claims folder is required. 4. Upon completion of the above, readjudicate the Veteran's claims for ratings in excess of 40 percent for degenerative disc disease of the lumbar spine and residuals of a fracture of the left tibia and fibula, to include consideration of extra-schedular consideration as to the left tibia and fibula disability, in light of the additional evidence, and adjudicate his claim for a TDIU. If the claims are not granted to his satisfaction, send him and his attorney a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claims. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ ERIC S. LEBOFF 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).