Citation Nr: 1320374 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-13 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his friend. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to October 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, continued a 20 percent evaluation for the service-connected lumbar spine disability. In March 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the virtual claims file. In November 2012 and December 2012, the Veteran filed new claims for entitlement to service connection for residuals of a traumatic brain injury (TBI), an aneurism, thoracic outlet syndrome, narcolepsy, and a skin fungus. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are 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 The Board finds that additional development is necessary before a decision may be rendered in this case. During the March 2013 hearing, the Veteran testified that he was not satisfied with the most recent VA contract examination performed in December 2010 (though the Veteran's representative identified the examination as occurring in December 2012). Review of the examination report shows some discrepancy regarding whether the lumbar spine disability involves neurological impairment. Addendum opinions issued after the examination contain conflicting evidence concerning whether the service-connected lumbar spine disability is productive of nerve compression. Furthermore, the Veteran has complained of radiating pain from his low back into his bilateral legs while receiving VA treatment. The Board therefore finds that a new VA examination is necessary to resolve the disagreement in the record regarding any neurological impairment from the service-connected disability. The Veteran also testified in March 2013 that he has continued to receive treatment for his low back disability at the American Lake VA facility, a division of the Puget Sound VA Medical Center (VAMC). The virtual and paper claims file currently contains records from this facility dated through August 2012. The procurement of potentially pertinent VA medical records referenced by the Veteran is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Upon remand, additional records from the American Lake VA must be obtained and added to the claims file. The Veteran testified that he was unable to work due to his service-connected lumbar spine disability. Entitlement to TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for 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 (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). In this case, the Veteran has raised the issue of unemployability. While the claim for TDIU is part of the Veteran's claim for an increased rating currently on appeal, the RO has not explicitly adjudicated the entitlement to TDIU. The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the RO. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). On remand, the RO should send the Veteran a letter that complies with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012), regarding his claim for entitlement to a TDIU. The duty to assist also requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disability has on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294 (1994). The claim should then be adjudicated. Accordingly, the case is REMANDED for the following action: 1. Obtain records of treatment from the American Lake VA (and/or the parent facility, the Puget Sound VAMC) for the period from August 2012 to the present. All efforts to obtain this evidence must be documented in the record. The additional VA records must be associated with the Veteran's virtual or paper claims file. 2. Send the Veteran appropriate notice regarding the claim for TDIU. Also request that he submit a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran for a VA spine examination to determine the current severity of all manifestations of his service-connected lumbar spine disability. The claims file must be provided to the examiner and reviewed in conjunction with the examination. The examination must include range of motion studies of the thoracolumbar spine. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. The examiner should further address whether, and if so to what extent, there is ankylosis of the thoracolumbar spine. The examiner should discuss whether the Veteran's disabilities have resulted in doctor-prescribed bedrest; if so, the examiner should address the frequency and duration of such bedrest in the past 12 months. The examiner should also identify any evidence of neurological disorders, including neuropathy in the lower extremities due to the service-connected disability. Any sensory or motor impairment in the extremities due to service-connected disabilities should be identified. The examiner should provide an opinion with respect to any symptoms due to nerve root impingement as to whether they are mild, moderate, moderately severe, or severe. The examiner is also requested to provide an opinion as to whether the Veteran's service-connected disability renders him unable to secure or follow a substantially gainful occupation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Adjudicate the issue of entitlement to TDIU. If the Veteran does not meet the schedular criteria for a grant of TDIU, determine whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 4.16(b). 5. Readjudicate the claims on appeal. If the benefits sought on appeal are not fully granted, issue a SSOC (to include the issue of entitlement to TDIU if not granted), before returning the case to the Board, if otherwise in order. The appellant 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). _________________________________________________ MILO H. HAWLEY 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).