Citation Nr: 1318894 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-47 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating greater than 20 percent for service-connected lumbosacral strain. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from September 1968 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and May 2008 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Chicago, Illinois, that denied an increased disability rating for the service-connected lumbosacral strain. In correspondence dated in November 2008, the Veteran indicated that his back disability had increased in severity and that he had been unable to work since 2002. As the Veteran has suggested that he is unable to engage in gainful employment as a result of his service-connected disability, the Board must consider whether a TDIU is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran 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. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 asserts that his service-connected low back disability is worse than reflected by the currently assigned 20 percent disability rating. The Veteran underwent a VA examination in January 2008. The examiner indicated that the Veteran reported having sustained an additional post-service Workers' Compensation back injury after slipping on oil on a loading dock resulting in significant incapacitation. It was noted that the Veteran was on Social Security Administration disability benefits since 2002 due to problems with his back and legs. The VA examiner opined that the Veteran's low back symptoms were the result of a combination of his non-service-connected diabetes mellitus causing peripheral neuropathy, and his non-service-connected Workers' Compensation injury. The Board notes that a September 2003 VA spine examination report makes no mention of a Workers' Compensation injury. In his November 2009 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran asserted that he never had a Workers' Compensation claim that led to a significant degree of incapacitation. He added that in 2002 he had a crush injury to the left hand that did not cause him to retire. He added that he had a fall injuring his thoracic spine in August 2006, but that the emergency room physician could only identify residuals of an old injury. The Veteran added that he did retire on Social Security Administration disability. Initially, a review of the Veteran's claims file reveals that records from the Social Security Administration associated with his disability award, to include clinical records supporting that award, have not been obtained. While Social Security Administration records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of Social Security Administration records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; also, Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the agency of original jurisdiction must obtain and associate with the claims file copies of any Social Security Administration disability determination and all medical records underlying any such determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Moreover, as it has been more than five years since the Veteran's most recent VA examination, the Board finds that he is entitled to a new examination as there may have been a change in the condition since the last examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); Allday v. Brown, 7 Vet. App. 517, 526 (1995). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his low back disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). As noted above, in Rice, the Court held that a claim for a TDIU is part of an increased disability rating claim when such claim is raised by the record. When a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined, and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the TDIU claim will be held in abeyance pending the aforestated development and adjudication of the Veteran's claim of entitlement to an increased disability rating. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall obtain VA records of treatment for his back disability that have not yet been associated with the claims file. If any requested records cannot be obtained, the Veteran should be informed of this fact, and notified of what efforts were made to obtain the records, and what additional efforts will be made with regard to his claim. 2. The RO/AMC shall request from Social Security Administration copies of any decision(s) and all medical records underlying any such decision(s) submitted or obtained in support of any claim for disability benefits from the Social Security Administration. If records are unavailable, the Social Security Administration must so indicate. If unsuccessful, the Veteran must be accorded the opportunity to furnish such records directly to Social Security Administration or to the RO/AMC. All records/responses received must be associated with the claims file. 3. The RO/AMC shall afford the Veteran a VA examination to ascertain the nature and severity of his service-connected lumbosacral strain. The claims file, including any relevant records in Virtual VA, should be made available to and reviewed by the examiner. All indicated tests shall be performed and all findings reported. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion as to the severity of the low back disability. The examiner must consider the Veteran's entire history of back symptomatology as reported by the Veteran and as evidenced by the clinical evidence of record. The examiner must conduct all necessary testing of the spine including range of motion studies (measured in degrees, with normal range of motion specified). The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination; and, if feasible, these determinations must be expressed in terms of the degree of additional range of motion loss due to such factors. This includes instances when these symptoms "flare-up" or when each respective joint is used repeatedly over a period of time. This determination shall also be portrayed, if feasible, in terms of the degree of additional range of motion loss due to these factors. The examiner shall also note whether there is muscle spasm, positive Goldthwaite's sign, listing of the spine, or abnormal mobility on motion. All neurologic manifestations attributable to the service connected low back disability shall be identified. The examiner shall specifically note any nerve affected by complete or partial paralysis, neuritis, or neuralgia. For each such nerve affected by incomplete paralysis, neuritis or neuralgia, the examiner should note whether such is mild, moderate, moderately severe, or severe. The examiner is notified that in assessing the degree of disability, where manifestations of a service-connected disability cannot be separated from the manifestations of a non-service-connected disability, all manifestations must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The examiner shall also review pertinent aspects of the Veteran's medical and employment history, and comment on the effects of the low back disability upon his ordinary activity and the effect, if any, on his current occupational capability. An opinion should be provided concerning the impact of the disability on the Veteran's ability to work, to include whether it is productive of severe economic inadaptability. A complete rationale for each opinion expressed should be provided. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 4. The RO/AMC shall thereafter readjudicate the Veteran's claims. If a benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He 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). _________________________________________________ THOMAS J. DANNAHER 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).