Citation Nr: 1316394 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 09-20 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from May 1944 to February 1947. 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). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2013, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO; a transcript of that hearing has been associated with the record. In the August 2007 rating decision, the RO denied entitlement to an increased evaluation for service-connected lumbar spinal stenosis and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. Review of the record reflects that the Veteran only perfected an appeal as to the latter issue. Hence, to the extent that he presented testimony at the March 2013 hearing regarding the condition of his lumbar spine, such testimony was proffered only in the context of his claim of entitlement to individual unemployability, and the Board does not have jurisdiction over the schedular evaluation assigned to the Veteran's lumbar spinal stenosis. 38 U.S.C.A. §§ 7104, 7105 (West 2002) In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. The issues of entitlement to service connection for lower extremity radiculopathy, bilateral knee disorders, and bilateral hip disorders, each secondary to lumbar spinal stenosis, 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. For reasons discussed further below, this 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 is currently in receipt of service-connected compensation benefits for lumbar spinal stenosis, rated as 60 percent disabling. He contends that he is entitled to a total disability evaluation based on individual unemployability due to service connected disorders arguing that he is no longer able to work as a result of his back disability. Review of the record reflects that after issuance of the June 2009 statement of the case but before transfer of this appeal to the Board, additional evidence was associated with the record, to include a February 2012 report of VA spine examination. As this evidence is relevant to the current appeal, the Board has no alternative but to remand this appeal for the RO/AMC to consider it in the first instance. If the claim remains denied, the RO must issue a supplemental statement of the case reflecting consideration of these records. See 38 C.F.R. §§ 19.31, 19.37 (2012). Additionally, remand is necessary to obtain an addendum report from the physician who conducted the February 2012 VA spine examination. This report reflects the examining physician's opinion that the Veteran's lumbar spinal stenosis has an "impact on his . . . ability to work," but does not describe the nature of such impact or provide examples as directed by the Disability Benefits Questionnaire. As this information is critical to the issue on appeal, clarification of the examiner's opinion warranted. Prior to any request for addendum, to ensure that all due process requirements are met and that the record is complete, the RO/AMC should obtain any outstanding, relevant records pertaining to the claim on appeal. This includes VA treatment reports from the VA Medical Center in Jamaica Plains dated since January 2006. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO/AMC should also provide the Veteran another opportunity to present information and/or evidence pertinent to his claim for a total disability evaluation based on individual unemployability due to service connected disorders. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Finally, as noted above, the Veteran has claimed entitlement to service connection for lower extremity radiculopathy, bilateral knee, and bilateral hip disorders, secondary to lumbar stenosis. Pertinent to this appeal, a March 2013 letter from a VA rehabilitation physician indicates that the Veteran may be unable to work due to his left hip and low back pain. Similarly, an April 2012 VA examination report indicates that the Veteran has a left knee and left hip disorder that may impact his ability to work. Given the foregoing, the issues of entitlement to service connection for these disorders are inextricably intertwined with the current appeal for entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. Hence, prior to any readjudication of the issue of individual unemployability, the RO/AMC must fully develop and adjudicate these claims, to include any examinations, if necessary. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (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. Contact the Veteran to request the names and addresses of all medical care providers who have treated his lumbar spine disability since March 2013. After the Veteran has signed the appropriate releases, those records should be obtained and those records not already associated with the claims file should be associated with the claims file. All attempts to procure such records should be documented in the file. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Obtain from the Jamaica Plain VA Medical Center all outstanding, pertinent records of evaluation and/or treatment of the Veteran since January 2006. All attempts to procure such records should be documented in the file. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Complete all appropriate development, including any necessary examinations, in connection with the Veteran's claims of entitlement to service connection for lower extremity radiculopathy, bilateral hip, and bilateral knee disorders secondary to lumbar spinal stenosis. After completing all appropriate development, the RO/AMC must adjudicate these service connection claims in light of all pertinent evidence and legal authority. If any claim of service connection is denied, the RO/AMC must notify the Veteran and his representative of the denial of the claim in a rating decision, and advise them of the Veteran's appellate rights. The Veteran and his representative are hereby notified that for the Board to exercise appellate jurisdiction of an issue not currently in appellate status, a timely appeal must be perfected. While the RO/AMC must furnish the Veteran the appropriate time period in which to perfect an appeal, if desired, the Veteran should do so as soon as possible to avoid unnecessary delay in the consideration of this appeal. 4. Thereafter, return the claims file to the physician who conducted the February 2012 VA spine examination for an addendum report. Access to the claims file, Virtual VA and a copy of this remand must be made available to the examiner for review. The examiner should review his response to Question #19, which indicates that the Veteran's back disorder impacts his ability to work, and then provide a detailed description of how lumbar spinal stenosis affects his occupational functioning, to include examples, if appropriate. The Veteran should only be scheduled for an examination if the February 2012 examiner is unavailable or one is deemed necessary to provide an appropriate response. A complete medical rationale for all opinions expressed must be provided. 5. After the development requested has been completed, the RO/AMC should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 6. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC is to readjudicate the issues remaining on appeal. All applicable laws, regulations, and theories of entitlement must be considered, as well as any evidence received since the May 2009 statement of the case. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DEREK R. BROWN 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).