Citation Nr: 1318657 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 06-07 168A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected lumbar spine degenerative disc disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active military service from April 1985 to March 1987. These matters come before the Board of Veterans' Appeals (Board) from May 2005 and January 2006 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. These matters were previously before the Board in March 2007 and March 2008, when the Board remanded them for further development. The matters were again before the Board in January 2010, when the Board denied the Veteran's claims. The Veteran appealed the January 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2010, the Court vacated the Board's January 2010 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). In November 2010, the Board received a VA Form 21-22a, signed by the Veteran, in which she appointed a different attorney as her representative. In February 2011, the Board informed the Veteran that the Veterans Law Judge previously assigned to her claim was no longer employed by the Board. She was further informed that she had the right to a hearing before a different Veterans Law Judge in accordance with of 38 C.F.R. § 20.707. In February 2011, the Veteran's representative stated that the Veteran was waiving her right to a Board hearing. The Board again remanded these matters for further development in March 2011. In a March 2012 rating decision, the RO granted entitlement to service connection for radiculopathy of the right and left lower extremities associated with lumbar spine degenerative disc disease, each separately evaluated as 10 percent disabling effective November 15, 2011. He was advised of the decision and his appellate rights in a letter dated in April 2012. The Veteran has not expressed disagreement with the effective date or rating assigned for these separately rated disabilities. As such, the issues for appellate consideration are limited to those noted on the title page of this decision. 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 seeks entitlement to an initial evaluation in excess of 20 percent for service-connected lumbar spine degenerative disc disease. The Veteran was provided with her most recent VA examination in November 2011, at which time she exhibited forward flexion to 55 degrees, with pain at 50 degrees; extension to 15 degrees, with pain at 5 degrees; lateral flexion to 15 degrees, with pain at 10 degrees, bilaterally; and lateral rotation limited to 10 degrees. However, in May 2013, the Veteran submitted the report of an independent medical examination conducted in February 2013 at the behest of her representative. The private examiner declared that the Veteran's lumbar range of motion was "practically non existent," and reported backward extension to zero degrees and lateral bending of no more than 10 degrees. Furthermore, the examiner indicated that "forward flexion with the knees straight allowed the tip of her fingers to come midway between the hips and the knees." The examiner concluded that the Veteran had been unable to work due to her lumbar spine condition since 1991, and that she was completely disabled at the current time. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Here, the disability picture presented in the February 2013 independent medical examination report is markedly more severe than the disability picture presented in the November 2011 VA examination report. However, the Board notes that the objective findings presented in the February 2013 independent medical examination report (i.e., forward flexion limitation of motion not being expressed in terms of degrees) are not specific enough to render a decision as to the appropriate disability rating for the Veteran's lumbar spine degenerative disc disease. As such, the Board finds that another VA examination to determine the current severity of the Veteran's lumbar spine degenerative disc disease is warranted. The Veteran also seeks entitlement to a TDIU. The Veteran has been in receipt of Social Security Administration (SSA) disability benefits since February 1990. Although the primary diagnosis recognized by the SSA as causing her disability was an affective disorder, the secondary diagnosis was a disorder of the back (discogenic and degenerative), for which she is service connected. In a letter dated in August 1990, the Veteran's treating physician opined that the Veteran was currently disabled from all employment due to central disc herniation and radiculopathy. In a letter dated in November 1990, the Veteran's treating physician opined that the Veteran experienced lower back pain which radiated down both legs and was exacerbated by sitting, standing, walking, bending, and lifting. The physician concluded that the Veteran was totally disabled. The Veteran was afforded a VA spine examination in March 2005, at which time the examiner noted that she was currently unemployed and last worked as a computer service representative for one week in 2003. However, the VA examiner did not offer any opinion as to the Veteran's employability. The Veteran's November 2011 VA examination report indicated that she had been working as a part-time home health aide to her mother for approximately 25 hours per week. However, the examiner noted that the Veteran was unable to take care of her mother any longer due to her own worsening condition and that her mother had been transferred to a nursing facility. As mentioned above, the private February 2013 examiner contracted by the Veteran's representative concluded that the Veteran had been unable to work due to her lumbar spine condition since 1991, and that she was completely disabled at the current time. To date, the Veteran has not been afforded a VA examination specifically to determine the effect of her service-connected disabilities on her ability to obtain and sustain substantially gainful employment. Given the evidence of record demonstrating that the Veteran may be unemployable as a result of her service connected disabilities, the Board has little choice but to remand this matter to afford the Veteran a VA examination. 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. Schedule the Veteran for a VA spine examination to determine the current severity of her service-connected lumbar spine degenerative disc disease. The VA claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies, to include active range of motion testing of the thoracolumbar spine, expressed in degrees by use of a goniometer, with standard ranges provided for comparison purposes, must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must describe all symptomatology due to the Veteran's service-connected lumbar spine degenerative disc disease, to include whether there is any instability, weakness, fatigability, incoordination, or flare-ups. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the thoracolumbar spine, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected lumbar spine degenerative disc disease, the presence or absence of changes in condition of the skin indicative of disuse due to the spine disability, and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected lumbar spine degenerative disc disease. The rationale for each opinion expressed must also be provided. 2. Schedule the Veteran for a general medical examination to determine whether her service-connected disabilities render the Veteran unemployable. The clinician is requested to furnish an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service-connected disabilities, considered in combination (and only her service-connected disabilities) are so severe that it is impossible for her to sustain substantially gainful employment. The clinician is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The clinician should review the claims file, and this fact should be noted in the accompanying medical report. 3. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect her claim, to include denial. See 38 C.F.R. § 3.655 (2012). 4. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. 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). _________________________________________________ U. R. POWELL 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).