Citation Nr: 1318131 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 07-03 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a compression fracture at L2. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1978 and from June 1981 to August 1992. He received the Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied entitlement to a compensable rating for a compression fracture at L2. The Veteran testified before an Acting Veterans Law Judge at a November 2007 videoconference hearing at the RO. A transcript of that hearing has been associated with his claims folder. In September 2008, the Board remanded the increased rating issue currently on appeal for further development. In November 2008, the RO granted an increased 10 percent rating for a compression fracture at L2, effective March 7, 2005. In June 2009 and April 2010, the Board remanded the increased rating issue currently on appeal for further development. In May 2010, the Appeals Management Center (AMC) granted a separate initial 10 percent rating for radiculopathy of the left leg and foot as secondary to the service-connected low back disability, effective March 7, 2005. This determination is also on appeal as part of the claim for an increased rating for the service-connected low back disability. In June 2011, the AMC assigned an initial 40 percent rating for radiculopathy of the left leg and foot, effective June 29, 2010. In December 2012, the Board remanded the increased rating issue currently on appeal to schedule the Veteran for a new Board hearing before a Veterans Law Judge, as the Acting Veterans Law Judge who conducted the prior hearing no longer operates in that capacity. The Veteran testified before the undersigned at a February 2013 videoconference hearing at the RO. A transcript of that hearing has been associated with his claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). In this case, the evidence indicates that the Veteran's service-connected low back disability may have worsened since his last VA examination in June 2010. For example, a February 2012 VA neurology outpatient treatment note includes a report of progressively worsening back pain. Also, the June 2010 VA examination report reveals that all lower extremity reflexes were normal (2+). However, the February 2012 VA neurology outpatient treatment note and a March 2013 VA neurology outpatient treatment note reflect that left knee and ankle reflexes were impaired. Given this evidence, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected low back disability is triggered. Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that entitlement to a TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The evidence reflects that the Veteran is unemployed and in receipt of Social Security Administration (SSA) disability benefits due, at least in part, to his low back disability. Also, the June 2010 VA examination report includes an opinion that he is unemployable due to his service-connected back disability. Therefore, given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice. The Veteran does not currently meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) (2012). VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Also, as noted in the Board's April 2010 and December 2012 remands, the Veteran has raised the issue of entitlement to an increased rating for a nondisplaced fracture at C6. This issue has not yet been adjudicated and the unadjudicated claim as well as the increased rating claim currently on appeal are inextricably intertwined with the claim for a TDIU. Additionally, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The Veteran has submitted VA treatment records dated in February 2011, February 2012, and March 2013 which reflect that he has received ongoing VA treatment for neurologic symptoms involving the lower extremities and other residuals of his low back disability. He reported during the February 2013 hearing that he continued to receive VA treatment for his back. The VA treatment records in the claims file that have been obtained by the agency of original jurisdiction (AOJ) are contained in the Nashville Vista electronic records system and are dated to July 2009. There are no additional treatment records included among the Veteran's paperless records in the Virtual VA system. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Furthermore, an October 2007 examination report from Pam Schmitt-Matzan reveals that the Veteran had received previous treatment for his back from that medical professional. However, that examination report is the earliest treatment record from that treatment provider in the claims file. During the November 2007 hearing the Veteran reported that he was receiving treatment for his back at the "Armory Care Clinic" in Cookeville. Also, records from Cookeville Chiropractic and Physical Therapy and T. Scott Baker, M.D., PC reflect that the Veteran had received treatment for his back disability from these treatment providers. When VA becomes aware of private treatment records it will specifically contact the Veteran and ask him for authorization to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with regard to the above identified treatment providers and the evidence reflects that additional records may be available. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claim for an increased rating for a nondisplaced fracture at C6. This issue shall not be certified to the Board unless the Veteran perfects an appeal with a timely notice of disagreement and substantive appeal. 2. Print the Veteran's SSA disability records from the SSA compact disc in the claims file and associate the printed records with the claims file. 3. Obtain and associate with the claims file all records of the Veteran's treatment for neurologic impairment of the lower extremities, a low back disability, a cervical spine disability (and any associated neurologic impairment), and a right knee disability contained in the Nashville Vista electronic records system and dated from July 2009 through the present, and from any other sufficiently identified VA facility. 4. The AOJ shall ask the Veteran to complete authorizations for VA to obtain all records of his treatment for neurologic impairment of the lower extremities, a low back disability, a cervical spine disability (and any associated neurologic impairment), and a right knee disability from Pam Schmitt-Matzan, the "Armory Care Clinic" in Cookeville, Cookeville Chiropractic and Physical Therapy, and T. Scott Baker, M.D., PC. All efforts to obtain these records must be documented in the claims file. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected low back disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. The ranges of thoracolumbar spinal motions shall be reported in degrees. The examiner shall also specifically answer the following question with respect to all ranges of spinal motion: What, if any, is the additional range-of-motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain? The examiner shall report whether there is any muscle spasm or guarding and whether any such symptoms are severe enough to result in an abnormal gait or abnormal spinal contour. The examiner shall report whether there is any ankylosis of the thoracolumbar spine or entire spine. If ankylosis is present, the examiner shall specify whether it is favorable or unfavorable and the angle at which the spine is held. The examiner shall also report the total duration of any incapacitating episodes due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician during the past 12 months. The examiner shall also specify the nerves affected by the low back disability and provide an opinion as to the severity of any associated paralysis, neuritis, or neuralgia. The examiner must provide reasons for any opinion given. 6. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 7. After completion of steps 1 through 6 above, the AOJ shall refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) for any period since March 2005 that the Veteran was unemployed and did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). 8. If any benefit for which a sufficient substantive appeal has been submitted remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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). 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). _________________________________________________ THOMAS H. O'SHAY Acting 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).