Citation Nr: 1317616 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 12-04 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased rating greater than 20 percent for a lumbar spine disability, to include degenerative joint disease, spinal stenosis, and lumbosacral strain. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1998 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied the claim for increased rating. The Veteran subsequently had a hearing before the undersigned Veterans Law Judge in April 2013. A transcript of that proceeding has been associated with the Veteran's Virtual VA electronic claims file. The record reflects that after the statement of the case (SOC) the Veteran submitted additional relevant evidence to the Board. No subsequent supplemental statement of the case (SSOC) was issued, but this is not necessary because in April 2013 the Veteran submitted a waiver of initial review of the evidence by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2012). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. During the Veteran's April 2013 Board hearing, the Veteran clarified that his claim for benefits also included his neck and right shoulder. The Board notes that entitlement to service connection for the neck and right shoulder was denied in a June 2000 rating decision, on the basis that there was no evidence of a current neck or right shoulder disability. The Veteran's contentions, in addition to raising the issues of entitlement to service connection for the neck and right shoulder, also potentially raised the issue of whether there was clear and unmistakable error (CUE) in the June 2000 rating decision or some subsequent rating decision in failing to grant entitlement to service connection for the neck and right shoulder. 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. 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 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 seeking entitlement to an increased rating greater than 20 percent for a low back disability. After a careful review of the evidence of record, the Board finds that the claim must be remanded for additional development. VA has an obligation under the Veterans Claims Assistance Act of 2000 (VCAA) to associate all relevant records in VA's possession with the Veteran's claims file. 38 C.F.R. § 3.159 (2012). In this case, the Veteran indicated at his April 2013 Board hearing that he had been receiving ongoing VA treatment for his low back problems. This statement is supported by written documents in the record, for example, a March 2012 document noting treatment for the back in March 2011 and September 2011. Review of the claims file indicates that VA treatment records have been associated with the claims file only to April 2010. As such, a remand is required to obtain these missing records. Such records are of even greater significance in this case, as the Veteran has indicated that he wanted the claim adjudicated based on the treatment evidence of record and that he was unwilling to report for another VA examination. The Board also notes that in an August 2000 rating decision the Veteran was granted entitlement to VA vocational rehabilitation benefits. Evidence of record suggests that the Veteran subsequently participated in this program. Vocational rehabilitation records, however, have not been associated with the Veteran's claims file. In addition, during the Veteran's April 2013 Board hearing he specifically raised the issue of entitlement to TDIU by asserting that he was not working as a result of his service-connected low back disability. In a subsequent May 2013 written argument, the Veteran's representative reiterated that the issue of entitlement to TDIU had been raised. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the claim for TDIU is part of the claim for higher rating and as such, a determination must also be made with respect to the TDIU claim. 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. Provide the Veteran with notice as to how to substantiate a claim for increase based on TDIU pursuant to 38 C.F.R. § 3.159 and request that he complete a TDIU claim form. Then conduct any development deemed appropriate based on the completed claim form. 2. Obtain all medical records and hospitalization records pertinent to the Veteran's disabilities at issue from all appropriate VA facilities from April 2010 to the present. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records. 3. Obtain and associate with the claims file the Veteran's VA vocational rehabilitation file and any associated records. 4. As noted above, during the Veteran's April 2013 Board hearing he expressed an unwillingness to report for an additional VA examination for his low back, despite indicating that his condition had worsened since the last VA examination of record (October 2011). If at any point prior to recertification of the Veteran's claims he expresses a willingness to report for a VA examination, then he should be scheduled for a VA examination to determine the current severity of his service-connected low back disabilities. 5. After the above is complete, readjudicate the Veteran's low back and TDIU claims. If a complete grant of the benefits requested as to each issue is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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). _________________________________________________ BETHANY L. BUCK 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).