Citation Nr: 1315261 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 06-22 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability evaluation in excess of 40 percent for a low back disability. 2. Entitlement to a disability evaluation in excess of 20 percent for left lower extremity radiculopathy. 3. Entitlement to a total disability rating due to individual unemployability (TDIU), to include consideration on an extraschedular basis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, his daughter ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1955 to May 1963. These matters come before the Board of Veterans' Appeals (Board) from January 2006 and April 2010 decisions through a complicated appeal process originating from the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). Initially, the Board observes that the Veteran appealed the RO's January 2006 initial assignment of a 10 percent evaluation following the award of service connection for radiculopathy of the left lower extremity and he appealed the denial of his claims for increased evaluation for low back disability and for TDIU. In a June 2006 rating decision, the RO found clear and unmistakable error with the January 23, 2006 rating decision, in which it granted service connection for the Veteran's left lower extremity radiculopathy from August 29, 2005, when the correct date was August 30, 2005. In the same decision, the RO increased the Veteran's disability evaluation for his left lower extremity radiculopathy, from 10 to 20 percent disabling, effective August 30, 2005. The RO also increased the Veteran's disability evaluation for his low back disability, from 20 to 40 percent disabling, effective August 30, 2005. In a February 2009 decision, it appears that the Board denied the Veteran's claims for higher evaluations for the low back and the radiculopathy disabilities, but remanded the matter of TDIU to the Agency of Original Jurisdiction (AOJ) for additional development, to include extraschedular consideration under 38 C.F.R. § 4.16(b). Prior to the return of the TDIU claim to the Board, the increased rating claims for low back disability and radiculopathy in the left lower extremity were again addressed in an April 2010 supplemental statement of the case (SSOC), although the RO had not otherwise adjudicated those two issues subsequent to the February 2009 Board denial. Thereafter, the Veteran, through his representative, submitted a June 2010 written statement disagreeing with the denial of his increased rating claims as set forth in the supplemental statement of the case. In July 2010, the Board determined that the April 2010 SSOC fulfilled the purposed of a new rating decision and the June 2010 statement from the Veteran's representative was considered a timely notice of disagreement with the RO's most recent denial. The Board remanded the increased rating issues for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). With respect to the Veteran's claim for a TDIU, the Board found that the claim was inextricably intertwined with the Veteran's pending claims for increased ratings and it was remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Since then, the RO provided the Veteran with an October 2010 statement of the case (SOC) on the matters of the increased rating claims and a November 2010 correspondence was accepted in lieu of a substantive appeal on those claims. Thus, the claims noted on the title page are appropriately before the Board. In February 2012, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing at the RO. A copy of the hearing transcript has been associated with the claims folder. This case was previously before the Board in April 2012. In that decision, the Board remanded the issues for additional development, to include a VA examination, and to obtain VA outpatient treatment records. However, as there has not been compliance with all of the directives, the case must be remanded. Stegall v. West, 11 Vet. App. 268 (1998). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. Please note 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 issues of entitlement to a disability evaluation in excess of 40 percent for a low back disability, entitlement to a disability evaluation in excess of 20 percent for left lower extremity radiculopathy, and entitlement to a TDIU, to include consideration on an extraschedular basis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND When the Board last reviewed the case in April 2012, it noted the Veteran's February 2012 testimony that his low back and left lower extremity radiculopathy disabilities had worsened since the last September 2010 VA examination. Such testimony included reports of increased pain and functional impairment, and the use of a wheelchair and motorized scooter. In addition, the Board noted that the aforementioned examination report contained findings of neurologic impairment in the Veteran's right lower extremity similar to the neurologic involvement associated with his already service-connected left lower extremity. Thus, the case was remanded to afford the Veteran an examination to assess his current level of severity of such disabilities, as well as to determine whether he had any neurological involvement in his right lower extremity due to his service-connected low back disability. The Veteran underwent a VA examination in May 2012. While the examiner identified the orthopedic manifestations of the low back disability, he failed to provide an accurate assessment of all of the neurological manifestations based upon the evidence of record. Specifically, there is no indication that the examiner considered the Veteran's lay contentions of testicular pain, and associated outpatient treatment. In this regard, VA treatment records dated in April 2010 note the Veteran's complaints of right scrotal pain for the past three to four years, which was treated with antibiotics; however, the pain was unresolved. Upon examination, the VA physician diagnosed scrotal discomfort and testalgia most likely related to possible nerve compression as a result of the low back disability. Subsequent lay statements dated in September 2010, as well as VA treatment records dated in November 2010 and March 2012 note complaints of testicular pain. In addition, a November 2011 VA treatment record indicates an assessment of urinary incontinence. Moreover, although the May 2012 VA examiner checked the box indicating that the Veteran had moderate right lower extremity radiculopathy, he did not specify whether the indicated diagnosis of sciatic nerve paralysis was specific to the service-connected left lower extremity, or whether it also involved the right lower extremity. Further, while the examiner opined that the Veteran did not have right lower extremity impairment secondary to his service-connected low back disability, he did not offer any rationale for such an opinion. Regarding the service-connected left lower extremity radiculopathy, the examiner diagnosed sciatic nerve paralysis, however failed to state whether the left foot dangles and drops, as per the April 2012 remand directive. The May 2012 VA examination is thus inadequate to rate the service-connected low back and left lower extremity radiculopathy disabilities. 38 C.F.R. § 4.2 (2012). Therefore, the Veteran must be afforded another VA neurological examination to assess the neurological deficits attributable to his service-connected low back and left lower extremity radiculopathy disabilities. Prior to any examination, the RO/AMC should obtain any outstanding pertinent VA records, and associate them with the claims folders. 38 C.F.R. § 3.159 (c)(2). Significantly, the Board notes that the October 2012 SSOC indicates that there exists a VA examiner's addendum dated in late June 2012; however, such addendum report is not contained within the claims files or Virtual VA. Further, the record does not contain any pertinent outpatient treatment records dated later than March 2012. With regard to the issue of entitlement to a TDIU, the May 2012 VA examiner failed to provide an opinion regarding the impact the left lower extremity radiculopathy disability has on the Veteran's employability. As for the low back disability, the examiner stated that it did not impact the Veteran's ability to work; however, failed to provide an explanation or rationale for such opinion. There is no indication that the examiner considered the Veteran's testimony and reported history that his low back disability made him unable to get up from a seated position without assistance from his chair, car, wheelchair, and scooter. Further, the examiner also failed to discuss the April 2009 VA examiner's opinion that the Veteran's low back and left lower extremity radiculopathy disabilities, without consideration of any non-service connected disabilities, most likely rendered him unable to secure or follow substantially gainful employment based upon his functional limitations which caused impaired range of motion and mobility, as well as chronic pain and flare-ups, which would likely result in decreased productivity, as well as increased absenteeism of the work place. Accordingly, another opinion should be obtained as to whether the Veteran's service-connected disabilities preclude substantially gainful employment. Friscia v. Brown, 7 Vet. App. 294 (1994). Moreover, subsequent to obtaining the aforementioned examination, the Board again refers the Veteran's claim of entitlement to TDIU on an extraschedular basis to the Director of Compensation and Pension for another opinion, as there is evidence to suggest that the Veteran was unable to work due to several of his service-connected disabilities, and that the severity of such disabilities present an exceptional and unusual disability picture with a related factor of marked interference with employment, specifically shown as an inability to work, so as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 4.16(b). Finally, the dispositions of these claims being remanded herein are directly relevant to the outcome of the instant claim for a TDIU, inasmuch as it may determine whether the Veteran satisfies the schedular criteria for a TDIU. Thus, the claims are "inextricably intertwined" with the issue of a TDIU, and the disposition of the TDIU claims must therefore be deferred pending the resolution of the preliminary matters. See Harris, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As there has not been substantial compliance with the remand directive, the appeal must be remanded again. Stegall, 11 Vet. App. at 268. Accordingly, the case is REMANDED for the following actions: (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. Obtain and associate with the record all outstanding pertinent VA treatment records from March 2012 to the present, to include the VA examiner's addendum dated in June 2012, which is listed in the October 2012 SSOC. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran and his representative so notified. 2. Thereafter, schedule the Veteran for a VA neurological examination in order to determine the current severity of the service-connected left lower extremity radiculopathy disability, and well as any additional neurological manifestations of his service-connected low back (thoracolumbar spine) disability, to include the claimed right lower extremity radiculopathy, testalgia, and urinary incontinence. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All tests deemed necessary must be performed. Based on the examination and review of the record, the examiner should identify any neurologic manifestations of the Veteran's service-connected left lower extremity radiculopathy and low back disabilities, to include specifying any and all neurologic symptoms (e.g., neuritis, neuralgia, sensory loss, body part dysfunction, etc.) with specific reference to the nerve(s) affected. The examiner should provide an opinion as to whether any neurological symptomatology equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any nerve. The examiner should identify any affected nerve, and state the severity of the impairment of the nerve affected. In terms of sciatic impairment, the examiner should state whether the foot dangles and drops, whether there is active movement possible of the muscles below the knee, and whether flexion of the knee is weakened or lost. The examiner must comment on whether the Veteran left foot dangles and drops as a result of his sciatic impairment. The examiner must also comment on whether the Veteran has right lower extremity radiculopathy, testalgia, and/or urinary incontinence that is associated with the service-connected low back disability, and in doing so, should consider the Veteran's reporting of testicular pain and urinary incontinence, as well as the objective evidence of record. With regard to the claimed right lower extremity condition, the examiner must consider: * the September 2010 VA examination report which shows neurological impairment, namely, decreased motor and reflex functions, in the right lower extremity. * the May 2012 VA examination report which indicates moderate right lower extremity radiculopathy. With regard to the claimed testicular condition, the examiner must consider: * VA treatment records dated in April 2010 which note complaints of right scrotal pain for the past three to four years, as well as include diagnoses of scrotal discomfort and testalgia most likely related to possible nerve compression as a result of the low back disability. * VA treatment record dated in March 2012 which note complaints of testicular pain rated a level 9 of 10. With regard to the claimed urinary incontinence condition, the examiner must consider: * the November 2011 VA treatment record that indicates that the Veteran has a current urinary incontinence condition. The examiner must address whether the Veteran's service-connected disabilities, (low back, evaluated as 40 percent disabling; left lower extremity radiculopathy, evaluated as 20 percent disabling; and scar status post low back surgery, evaluated as noncompensable) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. In answering this question, the examiner must consider and comment on the pertinent evidence of record, which notes the Veteran's lay contentions regarding his inability to get up from a seated position, to include a chair, a car, a wheelchair, and his scooter without assistance due to his low back disability. Specifically, the examiner must also consider: * the April 2009 VA examination report, which includes the examiner's opinion that the Veteran's low back and left lower extremity radiculopathy disabilities, without consideration of any non-service connected disabilities, most likely rendered him unable to secure or follow substantially gainful employment based upon his functional limitations which caused impaired range of motion and mobility, as well as chronic pain and flare-ups, which would likely result in decreased productivity, as well as increased absenteeism of the work place. * the July 2012 VA Aid and Attendance examination report, which includes the examiner's opinion that the Veteran's back disability did not prevent him from attending to the necessary activities of daily living. Specifically, the examiner attributed the moderate toileting disability to the Veteran's non-service connected bilateral shoulder arthritis; his tendency to fall when getting out of the shower, bilateral arm weakness, lack of ability to drive, and short term memory deficits to his non-service connected residuals of a stroke; and balance issues to his non-service connected bilateral knee degenerative joint disease. The examination report must include a complete rationale for all opinions expressed. 2. The addendum report must be reviewed by the RO/AMC to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 3. After completion of the foregoing, (to include consideration of whether service connection for a right lower extremity disability, testalgia and/or urinary incontinence can be granted as separate disabilities associated with the service-connected low back disability; whether entitlement to a disability evaluation in excess of 40 percent for the service-connected low back disability is warranted; whether entitlement to a disability evaluation in excess of 20 for the service-connected left lower extremity radiculopathy is warranted; and whether entitlement to a TDIU on a schedular basis is warranted), the RO should refer the case to the Director, Compensation and Pension, for a determination as to whether the Veteran is entitled a total evaluation based on individual unemployability on an extraschedular basis, under 38 C.F.R. § 4.16(b). The RO should include in this referral a full statement as to the Veteran's service-connected disabilities, employment history, education and vocational attainment and all other factors having a bearing on the issue. 4. When the development requested above has been completed, readjudicate the Veteran's claim, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. The Veteran's claim of entitlement to a TDIU must be readjudicated on schedular and extraschedular bases. If the decision with respect to the claim remains adverse to the Veteran, he and his representative must be furnished a supplemental statement of the case and afforded a reasonable period of time to respond. 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). These claims 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs