Citation Nr: 1313574 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 05-25 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased disability evaluation for residuals of a compression fracture of L-1, currently evaluated as 50 percent disabling. 2. Entitlement to a separate compensable rating for neurological impairment of the left lower extremity (classified as radiculitis) associated with residuals of compression fractures of the L1 and L2 vertebrae prior to June 5, 2012 and evaluated as 20 percent disabling effective June 5, 2012. 3. Entitlement to a separate compensable rating for neurological impairment of the right lower extremity (classified as radiculitis) associated with residuals of compression fractures of the L1 and L2 vertebrae prior to June 5, 2012 and evaluated as 20 percent disabling effective June 5, 2012. 4. Entitlement to a separate compensable rating for bladder impairment associated with residuals of compression fractures of the L1 and L2 vertebrae. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from April 1, 1966 to May 23, 1966 and from January 1967 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which the RO denied a rating in excess of 50 percent for residuals of an L-1 compression fracture. In a December 2007 decision, the Board denied a claim for entitlement to a rating in excess of 50 percent for residuals of a compression fracture of the lumbar spine. The Veteran, in turn, appealed to the United States Court of Appeals for Veterans Claims (the Court). Counsel for VA's Secretary and the Veteran's representative (the parties) filed a Joint Motion for Remand with the Court, which was granted by a March 2009 Order. In August 2009, the Board remanded the matter to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. In June 2011, the Board again denied the claim for entitlement to a rating in excess of 50 percent for residuals of a compression fracture of the lumbar spine on a schedular basis and also provided an explanation as to why a referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 was not warranted. The Board remanded the appeal for consideration of entitlement to a separate compensable rating for bladder impairment raised under Note 1 of the General Rating Formula for Diseases and Injuries of the Spine, which mandates separate evaluation for any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. The Board also remanded entitlement to a TDIU, raised pursuant to the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), for further development, and to consider this matter on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Veteran appealed the June 2011 Board decision (to the extent that an increased rating for a lumbar spine disability was not granted) to the Court. Pursuant to a Joint Motion for Partial Vacatur and Remand, a February 2012 Order of the Court vacated the portion of the Board's decision that denied entitlement to a disability rating in excess of 50 percent for the service-connected lumbar spine disability and remanded the claim for readjudication in accordance with the directives of the joint motion. The Board remanded this issue for further development in May 2012. In December 2012, the Appeals Management Center (AMC) granted separate ratings for radiculitis of the left and right lower extremities, and assigned initial 20 percent ratings for each lower extremity effective from June 5, 2012. The 50 percent schedular rating for the lumbar spine compression fracture residuals remained unchanged. . As the separately rated radiculitis affecting the left and right lower extremities are neurologic manifestations of the lumbar spine disability that is on appeal, these matters are also before the Board. This was not a full grant of the benefits sought on appeal. The issues of entitlement to a separate compensable rating for bladder impairment and to TDIU have been returned to the Board for further consideration. 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 In regards to the issue of entitlement to a separate compensable rating for bladder impairment claimed as due to the lumbar spine disability, the Veteran has repeatedly provided lay statements describing urinary difficulties after he fractured his spine in service. He also alleged that during his second period of service, from January 1967 to September 1967, he was hospitalized for 3 days in January 1967 for pain in his low back at Fort Jackson, South Carolina. He indicated that he had obtained private hospital reports at Greenville General Hospital and McLeod Hospital during 1967, and that he provided these records to his then Congressman, Robert T. Ashmore. (Service treatment records from this second period of service have been obtained and are silent for hospitalization for back complaints during 1967, and that Greenville General Hospital and McLeod Medical Center reported that no records were found). In February 2013, the Veteran has asked that VA attempt to obtain these records through any archives where Congressman Ashmore's records would be stored. It appears that there is an archive of Congressman Ashmore's records at the University of South Carolina Libraries and that other congressional records are stored in the Library of Congress' Center for Legislative Archives. Although McLeod Medical Center reported at one point in February 2013, that it retained no records of treatment before 1986, it reported later that month that it would recheck its records if additional information specified in its response could be provided. There is no indication that the Veteran was asked to provide this information. Such follow up is likely required. Pub.L. 112-154, Title V, § 505(a), (b), Aug. 6, 2012, 126 Stat. 1192 (to be codified at 38 U.S.C.A. § 5103A(a)(B)(2)). Following the most recent supplemental statement of the case (SSOC) issued in February 2013, additional relevant records were associated with the claims file by an agency of original jurisdiction and additional statements were submitted by the Veteran. He has argued that an additional supplemental statement of the case should be issued to assist him in his appeal. He is entitled to an additional supplemental statement of the case. 38 C.F.R. §§ 19.37(a), 20.1304 (2012). In February 2013, a VA examiner determined that the bladder impairment claimed by the Veteran was not related to neurological impairment stemming from the lumbar spine disorder. However the examiner did suggest other possible causes of the bladder impairment including the use of opiates. The medical evidence reveals the Veteran was prescribed opiates to treat lumbar spine pain. Thus this raises a question as to whether the claimed bladder impairment, even if not considered a neurological manifestation of back pain, is otherwise secondary to medication use to treat the lumbar spine disorder. Thus further evaluation and opinion is indicated to fully address this matter. Regarding the TDIU claim, the Board notes that this matter was specifically remanded in June 2011 to consider entitlement on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The December 2012 rating decision resulted in a combined 70 percent rating effective June 5, 2012, thereby meeting the percentage requirements of 38 C.F.R. § 4.16(a) as of that date. Entitlement on an extraschedular basis must be considered prior to that date. Further, the basis upon which the TDIU was denied under the combined schedular criteria of 70 percent pursuant to 38 C.F.R. § 4.16(a) is not shown to be adequately supported by rationale. The denial was based on the opinion from the VA examiner in February 2013 who opined that the Veteran's lumbar spine disability would limit his ability to perform physical employment but not sedentary employment. The Veteran's work experience has been as a truck driver, it is not clear from the opinion whether the Veteran would be able to perform this type of employment. Thus reexamination is indicated to address whether the lumbar spine disorder, which now the radiculitis of both lower extremities precludes employment in light of the Veteran's work history. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain the treatment records reported by the Veteran as being in the archives of Congressman, Robert T. Ashmore pertaining to his attempts to assist the Veteran with his claim for VA disability benefits in 1967. Congressman Ashmore's records are reportedly archived at the University of South Carolina Libraries and some records may be at the Library of Congress, Center for Legislative Archives. If no records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 2. Ask the Veteran to provide the information specified in the February 26, 2013 response from McLeod Medical Center. If he provides additional information, ask him to provide an authorization to submit the additional information to the McLeod Medical Center and request records of his treatment. 3. If any requested records cannot be obtained, inform the Veteran, tell him what efforts were made to obtain the records, and what additional efforts will be made with regard to his claim. 4. After the aforementioned development has been completed, return the claims folder to the February 2013 VA examiner, if available. The examiner should clarify whether the Veteran's history of a use of opiate medication to treat his lumbar spine pain is causing or making worse his bladder impairment. The examiner should provide reasons for the opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide reasons for the inability to provide the necessary opinion. The examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.. The February 2013 examiner should also be asked to clarify whether the Veteran's low back disability and associated neurologic impairments would prevent him from maintaining his former employment as a truck driver. 5. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 6. If there is any period since March 2003 when the Veteran was unemployed but did not meet the percentage requirements for TDIU, the claim should be referred to the Director of VA's Compensation and Pension Service for adjudication in accordance with 38 C.F.R. § 4.16(b) (2013). 7. If any benefit sought on appeal is not fully granted, issue a supplemental statement of the case (SSOC) and return the record to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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).