Citation Nr: 1312722 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-48 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 40 percent for degenerative joint disease and spinal stenosis of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to June 1977 and from June 1977 to May 1985. This appeal arises before the Board of Veterans' Appeals (Board) from an April 2009 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at the RO before a decision review officer (DRO) in September 2010. A transcript of the hearing is associated with the claims file. The Veteran requested, and was scheduled for a hearing before a Veterans Law Judge at the RO on May 15, 2012. However, the Veteran failed to appear for his hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2012). The Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation; there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case, on his VA examination in October 2010, the VA examiner noted that the Veteran had been unemployed since 2004 or 2005 due to his lumbar spine condition. Accordingly, a claim for TDIU has been raised by the. 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 Rating for Lumbar Spine Disability The Veteran's service-connected lumbar spine disability is currently evaluated as 40 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The 40 percent evaluation contemplates forward flexion of the thoracolumbar spine or 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A higher rating contemplates unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. In addition, any associated neurological abnormalities are to be separated evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, note (1). The record reflects that the Veteran has neurological impairment of the lower extremities with treatment records showing bilateral radiculopathy into the lower extremities with left foot drop noted on occasion. The etiology of this additional impairment is unclear. A March 2009 VA examiner concluded that the Veteran's lower extremity neurological complaints were more likely than not due to his cervical spine disability rather and that his lumbar spine lateral recess stenosis on the right would not explain his left lower extremity symptoms. However, an October 2010 VA examination diagnosed the Veteran with lumbar degenerative disc disease with left foot drop. Significantly, the October 2010 examiner did not provide a rational for his opinion or discuss the impact, if any, that the Veteran's cervical spine disability had on his lower extremity neurological impairment. Based on the ambiguity contained in the medical evidence, the Board is of the opinion that a new VA examination would be probative in ascertaining the relationship, if any, between the Veteran's service-connected and any neurological impairment of the lower extremities. TDIU Claim The Board finds that, based on the Veteran's statement and the May 2009 and October 2010 VA examination reports, the issue of TDIU has been reasonably raised by the record. As noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to TDIU should be adjudicated by the RO in light of the Court's decision in Rice. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Services, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a) . See 38 C.F.R. § 4.16(b). The Board notes, parenthetically, the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular evaluation under 38 C.F.R. § 3.321(b) (1) and for purposes of a TDIU claim under 38 C.F.R. § 4.16. Kellar v. Brown, 6 Vet. App. 157, 162 (1994). Specifically, 38 C.F.R. § 4.16 does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided appropriate notice in response to the claim of entitlement to a TDIU. 2. The Veteran should be afforded a VA examination by an appropriate examiner to ascertain whether the Veteran's service-connected lumbar spine disability results in his current lower extremity neurological impairment. The claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed. Following review of the evidence of record and examination of the Veteran, the examiner should: (a) Identify with specificity any neurological impairment of the lower extremities that is currently manifested or that has been shown in the record at any time since December 2008. (b) For each neurological impairment identified, the examiner should proffer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that such impairment is proximately caused by or otherwise etiologically related to the Veteran's service-connected lumbar spine disability. (c) For each neurological impairment identified that is not etiologically related to the Veteran's service-connected lumbar spine disability, the examiner should proffer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that such impairment is aggravated by the Veteran's service-connected lumbar spine disability. (d) The examiner should comment on the severity of any neurological impairment manifested in the lower extremities. Such discussion should include identify the nerve affected and whether such symptomatology is consistent with (i) complete paralysis; (ii) mild incomplete paralysis; (iii) moderate incomplete paralysis; (iv) moderately severe incomplete paralysis; or (v) severe (with marked muscular atrophy) incomplete paralysis. (e) The examiner should also provide an opinion concerning the impact of the Veteran's service-connected peripheral neuropathy of the left and right upper extremities on his ability to work. Any indicated studies should be performed. The supporting rationale for all opinions expressed must be provided. 3. The RO or the AMC also should undertake any other development it determines to be warranted before the Veteran's claim for a TDIU is decided, including referral of the claim to the Director, Compensation and Pension Services, for extra-schedular consideration. 4. Then, the RO or the AMC should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative an SSOC and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). _________________________________________________ DAVID L. WIGHT 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).