Citation Nr: 1319564 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-43 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for spina bifida L5 with congenital fusion of the articular facets L4-5. 2. Entitlement to total disability based on individual unemployability (TDIU), on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from May 1973 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) that reopened the Veteran's claim of entitlement to service connection for the a low back disability, granted service connection, and assigned an initial 10 percent rating. This action constituted a grant of benefits with respect to the Veteran's claim to reopen and the underlying claim for service connection on the merits. However, the Veteran subsequently perfected a timely appeal of the downstream issue of entitlement to a higher initial rating in excess of 10 percent. The Veteran requested a Board hearing in regards to appeal of the initially evaluation assigned, but he withdrew his request in a December 2011 written statement. The issue of entitlement to nonservice connected pension with aid and attendance has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Low back disability A review of the claims file shows that the Veteran's VA treatment records are current through 2007 only. His last substantive medical record is his February 2008 VA examination report. As the information in the claims file is at least five years old, a remand for additional treatment records is necessary to determine the current severity of the Veteran's service-connected spine disability. The Board notes that some records added to the claims file and Virtual VA indicate that the Veteran may have received in-patient or nursing care treatment for a period of time in May 2011. The Veteran was last afforded a VA spine examination in February 2008. He has indicated that his condition has worsened since the 2008 VA examination. As such, the VA contracted to provide the Veteran with a fee-basis VA spine examination in July 2010. The letter provided to the Veteran is contained in the claims file. The Veteran failed to report to the July 2010 fee-basis VA examination. There was some confusion in the record on whether the Veteran had moved to Maine, as his examination was scheduled in Oklahoma. During September 2010 report of contact, the Veteran provided an Oklahoma address and a current telephone number. This address was different from the address the appointment letter was sent to in June 2010. In October 2010, a VA representative attempted to contact the Veteran on the telephone number he had provided the month earlier, but there was no answer. In October 2010, the Veteran's representative verified his current Oklahoma address. The Veteran was scheduled for a VA examination in November 2010. Six days before the VA examination's scheduled date the Veteran called to cancel the examination. He reported that he could not find transportation to the examination, he was "bed bound," and he "had an incident at this VAMC in the past and does not want to be seen there anyway." As the Board is remanding the Veteran's claim so that additional treatment records can be obtained, an additional attempt to schedule the Veteran for a VA examination should be made. The Board is sympathetic to the Veteran's housing difficulties, but he should attempt to keep the VA and his representative abreast of his new addresses. The Board advises the Veteran that it is his responsibility to report for the VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. A Veteran has an obligation to cooperate with VA in the development of his claim; the duty to assist is not a one-way street. 38 C.F.R. § 3.159; Woods v. Derwinski, 1 Vet. App. 190 (1991). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the evidence suggests that the Veteran's self report of symptoms related to his back disability may not be credible. His treatment records reveal that he has been treated with narcotic pain medication for his low back disability for numerous years and as such has developed a dependence on them. His VA treatment records are replete with notations regarding drug-seeking behavior. According to the Veteran his medications have been stolen or lost several times. He is under a pain contract with a VA physician who is in charge of the Veteran's pain medication, yet he violates the contract repeatedly. He seeks pain medication from other physicians and hospitals, and he frequently abuses his prescription medications by taking higher than his prescribed doses. While he generally complains of back pain of a severity that he rarely leaves the bed or couch, and can "hardly walk," he has informed physicians that he has exacerbated his back pain by mowing the lawn, helping his brother move, playing 18 holes of golf, helping a neighbor who was trapped on a window, etc. These exacerbations of back pain then cause him to take more pain medication than prescribed, and he then seeks additional medication through the emergency department or through his pain-contract physician. His pain-contract physician has expressed his frustration with the Veteran's disregard for the pain contract. Throughout the claims file VA physicians have been attempting to wean the Veteran to lower doses of narcotic medication as it is compromising to his health, but he has not followed through with their attempts by continually taking more than his directed dosage. As such, he has been noted to have opoid dependence, and when he is unable to obtain additional medication he has experienced withdrawal symptoms. The Board, and the Veteran's physicians, recognize that his low back disability is painful, but due to his manipulation of the system through drug-seeking behavior, he is not credible to report the level of severity of his pain. Additionally, Virtual VA contains a May 2011 signed nursing statement from the Veteran that he is not competent to manage his own funds. As the Veteran's lay statements regarding the severity of his pain are less than credible, the Board asks that the VA examiner take note of any objective indications of pain during the VA spine examination. Also, as the Veteran has complained of difficulty walking and standing, the VA examiner should specifically address his objective functional limitations due to his disability. TDIU Treatment records and lay statements contained in the claims file indicate that the Veteran has had difficulty findings and maintaining gainful employment as a result of his low back disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) found that a claim for a TDI) was part of the determination of an underlying increased rating claim and cited to Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) for the notion that a TDIU claim is raised once a Veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability. See 38 C.F.R. § 3.155(a). In this case, a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, should be forwarded to the Veteran if a request for a TDIU evaluation is expressly raised by the Veteran or reasonably raised by the evidence of record." Further, once the VA Form 21-8940 is received and former employers are identified, then VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, should be forwarded to the former employers listed on the form. Currently, the Veteran does not meet the schedular percentage requirements for TDIU. Where the percentage requirements for TDIU benefits under 38 C.F.R. § 4.16(a) are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). VA has the duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disability has on his ability to work. See Friscia v. Brown, 7 Vet. App. 294 (1994) (holding in the case of a claim for TDIU, that VA has a duty to obtain medical opinions as to employability). The VA spine examiner should be directed to address whether or not his service-connected disability renders him unable to secure and maintain substantially gainful employment, to include describing the disability's functional impairment and their impact on physical and sedentary employment. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC is to provide the Veteran corrective VCAA notice which informs the Veteran of the evidence necessary to establish TDIU. 2. The Veteran should be asked to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability). He should provide specific information about any attempts he has made to obtain employment since retirement. After obtaining this information, provide a VA Form 21-4192 to any prior employer(s) referenced by the Veteran. 3. Ongoing medical records from 2007 to the present should also be obtained and associated with the claims file or Virtual VA. 38 U.S.C.A. § 5103A(c) (West 2002); 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). 4. After obtaining any available records noted above, the AMC should then schedule the Veteran for a physical examination to determine the current severity of his low back disability. The Veteran's VA claims folder, a copy of this Remand, and any additional records obtained should be made available to, and should be reviewed by the examiner. As noted above, the Veteran's apparent drug seeking behavior calls to question his credibility with respect to the severity of his back disability, thus, the examiner should be asked to take note of any objective indications of pain during the VA spine examination and to full describe the observed functional limitation attributable to the Veteran's service-connected back disability. The examiner must identify (1) range of motion of the Veteran's lumbar spine, including motion accompanied by pain, in degrees; and (2) functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use. If the Veteran's lumbar spine is ankylosed, this should be made clear. The examiner should note all objective indications of pain and functional impairment. The examiner should also specifically assess the severity of all neurological symptomatology, if any, that is at least as likely due to the Veteran's service-connected low back disability. Lastly, the examiner must address whether it is at least as likely as not (a 50/50 probability or greater) that the service-connected low back disability alone renders the Veteran unable to secure and maintain substantially gainful employment. Any examination conducted must describe any functional impairment and the impact of the service connected disorder on physical and sedentary employment. 5. The AMC/RO will advise the Veteran that it is his responsibility to report for the VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event he does not report for any ordered examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After completion of the above and any additional development deemed necessary, the issues on appeal must be reviewed with consideration of all applicable laws and regulations. The AMC should address the Veteran's claim for TDIU on a schedular or extraschedular basis, as determined by the outcome of his increased rating claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review 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). _________________________________________________ DAVID L. WIGHT 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).