Citation Nr: 1318292 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-28 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of low back strain with degenerative changes and degenerative disc disease of the lumbar spine. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to August 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which continued the 20 percent disability evaluation for the low back disability. In May 2009, the Veteran presented testimony in a travel board hearing before the undersigned, and a copy of the transcript has been associated with the claims folder. In July 2009, the Board remanded this matter for further development. Subsequently, in a March 2011 decision, the Board denied the Veteran's claim for an increased evaluation for his low back disability and referred the issue of a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Memorandum Decision, the Court vacated the January 2003 Board decision's denying entitlement to an increased evaluation for a low back disability, and modified the Board's referral of a TDIU. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. During the November 2009 VA examination, the Veteran reported that he was unable to work mainly due to his back disability. In light of the Court's holding in Rice as well as its discussion of the March 2011 Board decision in the September 2012 Memorandum Decision, the Board has considered the TDIU claim as part of the Veteran's pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this remand. As noted in the March 2011 Board decision, during the December 2006 VA examination the Veteran stated that his current erectile dysfunction was secondary to his back disability. It appears that the Veteran has raised a claim of entitlement to service connection for erectile dysfunction, claimed as secondary to his low back disability. That issue, which has not been adjudicated, is REFERRED back to the RO for appropriate action. 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 The Veteran was afforded several VA examinations for his low back disability. However, review of the examination reports shows that they are insufficient to adequately evaluate the Veteran's spine disability. As noted by the Court in the September 2012 Memorandum Decision, the VA examiners failed to determine the degree of range of motion loss due to pain on as used as required by DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court also observed that the examiners did not address any additional range of motion loss as a result of pain or functional loss during flare-ups as outlined in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, on remand, the Veteran must be afforded another examination taking into account these factors. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Additionally, it appears that the Veteran may continue to receive ongoing treatment from the VA Medical Center. While this claim is on remand, all outstanding VA treatment records should be obtained and associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes that since it has just determined that a claim for a TDIU is part of the pending increased rating claim, the Veteran has not been sent a notification letter in compliance with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Therefore, on remand, he should be sent an appropriate notification letter. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2011); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). In this case, the Veteran has not yet been afforded an examination to determine whether he is unemployable due to his service-connected disabilities (major depressive disorder, left hip arthritis, low back disability, and gastroesophageal reflux disease (GERD)). Therefore, on remand the Veteran must be afforded an examination to determine whether his service-connected disabilities affect his employability. Finally, in March 2013, the Veteran submitted additional evidence in support of his claims and indicated that he was not waiving consideration by the Agency of Original Jurisdiction (AOJ). Therefore, on remand, the AMC/RO must readjudicate the Veteran's claims based on the evidence received since the February 2010 supplemental statement of the case (SSOC). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a VCAA compliant duty-to-assist letter on the issue of entitlement to a TDIU and request that he complete and return a TDIU claim form. 2. Obtain all relevant outstanding VA treatment records. All attempts to locate these records must be documented in the claims folder. 3. Schedule the Veteran for a spine examination in order to determine the current level of severity of his low back strain. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that he or she has reviewed the folder in conjunction with the examination. All indicated studies, including range of motion studies in degrees using a goniometer, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. The examiner should indicate whether the Veteran's low back disability results in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should comment on any neurological abnormality associated with the low back disability, and, if present, identify the affected nerves and level of severity. The examiner should also provide an opinion concerning the impact of the Veteran low back disability on the Veteran's ability to work, to include whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran is unemployable because of his service-connected back disability. The supporting rationale for all opinions expressed must be provided. 4. Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The claims folder should be made available to the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities render him unable to secure or maintain substantially gainful employment taking into consideration his educational and work background. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examination report must include a complete rationale for all opinions and conclusions reached. 5. Readjudicate the Veteran's claims for an increased rating for his low back disability and a TDIU based on the evidence received since the February 2010 SSOC. If the benefits sought on appeal are not granted, issue the Veteran and his representative an SSOC and provide them an opportunity 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). 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). _________________________________________________ S.S. TOTH 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).