Citation Nr: 1311981 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-00 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for low back pain, rated as 10 percent disabling prior to January 19, 2009 and 20 percent disabling thereafter. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to April 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, continued a 10 percent evaluation for service-connected low back pain. The Veteran testified before the undersigned Veterans Law Judge at the RO in September 2012. A transcript of the record is included in the claims file. In his May 2007 notice of disagreement, the Veteran reported that he experienced depression and anxiety secondary to service-connected low back pain. He also filed a claim for dependency in November 2011. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 contends that an increased rating is warranted for the service-connected low back disability as it is productive of chronic pain that has worsened in severity and has rendered him unemployable. The Board finds that additional evidentiary development is necessary before a decision may be issued. With respect to the claim for an increased rating, the Veteran testified in September 2012 that his low back pain has worsened in severity. He was last examined by VA in a March 2011 contract examination, but a September 2012 back disability questionnaire completed by a private physician indicates that lumbar range of motion has decreased since the time of the March 2011 examination. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). As the record contains lay and medical evidence indicating a worsening of the Veteran's service-connected disability, a new VA examination is required. The Veteran also testified in September 2012 that he had recently received treatment for his service-connected disability from two private physicians. Some records from these physicians are included in the claims file, but they only date through January 2009. VA has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). Upon remand, the Veteran should be provided medical release forms and asked to authorize them to allow VA to obtain records of the identified private treatment on his behalf. The Board also finds that a claim for TDIU must be remanded. Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the Veteran has raised the issue of unemployability. He testified in September 2012 that he was terminated from his job as a credit analyst due to physical limitations with sitting and standing caused by his service-connected low back pain. While the claim for TDIU is part of the Veteran's claim for an increased rating currently on appeal, the RO has not explicitly adjudicated the entitlement to TDIU. The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the RO. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). The RO should send the Veteran a letter that complies with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012) regarding his claim for entitlement to a TDIU. The claim should then be adjudicated. In the case of a claim for TDIU, the duty to assist also requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294 (1994). The VA examination to determine the current severity of the Veteran's low back pain should also include a medical opinion discussing whether the Veteran is unemployable due to the service-connected lumbar spine disorder and associated neurological impairment. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate notice regarding the claim for TDIU. Also request that he submit a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Provide the Veteran with medical release forms and ask that he complete them to authorize VA to obtain records of private treatment from Drs. Grasso and Spektor for the period beginning January 2009. 3. If complete medical release forms are received, obtain records of treatment from all identified private physicians and facilities. If unsuccessful in obtaining this evidence, inform the Veteran and his representative and request them to provide the outstanding evidence. Copies of all records must be associated with the Veteran's virtual or paper claims file. 4. Schedule the Veteran for a VA spine examination to determine the current severity of all manifestations of his service-connected thoracolumbar disability. The claims folder must be made available to and reviewed by the examiner. The examination must include range of motion studies of the thoracolumbar spine. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. The examiner should further address whether, and if so to what extent, there is ankylosis of the thoracolumbar spine. The examiner should discuss whether the Veteran's disability has resulted in doctor-prescribed bedrest; if so, the examiner should address the frequency and duration of such bedrest in the past 12 months. The examiner should also identify any evidence of neurological disorders, including neuropathy in both lower extremities due to the service-connected back disability. Any sensory or motor impairment in the lower extremities due to service-connected disability should be identified. The examiner should provide an opinion with respect to any symptoms due to nerve root impingement as to whether they are mild, moderate, moderately severe, or severe. The examiner should then provide an opinion as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran is currently service-connected for low back pain and radiculopathy of the bilateral lower extremities. The examiner is requested to provide a complete rationale for any opinion expressed based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Adjudicate the issue of entitlement to TDIU. If the Veteran does not meet the schedular criteria for a grant of TDIU, determine whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 4.16(b). 6. Readjudicate the claims on appeal. If the benefits sought on appeal are not fully granted, issue a SSOC (to include the issue of entitlement to TDIU if not granted), before returning the case to the Board, if otherwise in order. The appellant 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). _________________________________________________ ROBERT E. SULLIVAN 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).