Citation Nr: 1320553 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-02 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine (low back disability). 2. Entitlement to a compensable evaluation for a left knee strain. 3. Entitlement to a compensable evaluation for radiculopathy of the right lower extremity. 4. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the left lower extremity. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board notes that the case caption, above, has been amended to include the issue of whether a TDIU rating is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial 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. Indeed, in June 2013 written argument, Disabled American Veterans, the Veteran's representative, offered argument in support of the Veteran's entitlement to a TDIU. 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 VA treatment records dating up to July 2008 are contained in the claims file. As there potentially are outstanding VA medical records relevant to the appeal, there is a duty to obtain such records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the Veteran reports that his service-connected disabilities have worsened since his most recent March 2009 VA examination. As such, VA is required to afford contemporaneous VA examinations, to assess the current nature, extent and severity of his service-connected low back, left knee strain and bilateral lower extremity radiculopathy disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board finds that these claims must be remanded. The Veteran's representative also indicated in the June 2013 written statement that the Veteran's service-connected disabilities have had an effect on the Veteran's occupation. When considered in light of Rice and all other evidence of record, reasonably raise the part-and-parcel matter of entitlement to a TDIU. As the Board is remanding the increased rating claims for a low back disability, left knee strain and bilateral lower extremity radiculopathy, to include as secondary to a low back disability, the TDIU issue too must be remanded because the matters are inextricably intertwined and must be considered together. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his service-connected low back disability, left knee strain and bilateral lower extremity radiculopathy, to include reports of instability and limitation of motion due to pain and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. The RO shall provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to a TDIU, and VA's and the Veteran's responsibilities to provide evidence and information in support of a TDIU claim, which has been raised by the record. The Veteran should be provided an appropriate amount of time to respond to this notification. This notification should be associated with the claims file. 3. Physically or electronically obtain any outstanding VA treatment records, dated since July 2008. 4. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to the Veteran's low back disability and left knee strain. The claims folder should be made available to and reviewed by the examiner and all necessary tests should be performed. (a) For the lumbar spine disability, the examiner should identify all back orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's low back. In addition, if possible, the examiner should state whether the back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Further, the examiner should also discuss the nature and severity of the Veteran's right and left lower extremity radiculopathy. The examiner must also state whether the Veteran has bowel or bladder problems related to his low back disability. (b) For the left knee disorder, the examiner should perform an appropriate range of motion examinations, expressing all findings in degrees and noting the degree where painful motion, if any, is present, on both flexion and extension. Further, the examiner should note the presence, or absence, of weakened movement, excess fatigability, and incoordination present, to include on repetitive testing. The examiner must also indicate whether, and to what extent, there is any instability, subluxation or locking. The examiner must also indicate the impact the Veteran's low back and of his left knee disability has on his ability to secure or follow a substantially gainful occupation. The examiner must also comment on the combined impact of the Veteran's service-connected disabilities on his ability to work in light of his education, training and experience. All findings and conclusions should be set forth in a legible report. 5. Then readjudicate the appeal, to include consideration of the assignment of TDIU. If the benefits sought on appeal are not granted, the RO must issue a supplemental statement of the case and the Veteran and his representative should be given an opportunity to respond. 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). _________________________________________________ STEVEN D. REISS 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).