Citation Nr: 1320563 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-46 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for radioculopathy of the right lower extremity. 2. Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently rated as 40 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 21, 1971 to June 14, 1972, and from June 21, 1972 to June 23, 1974. The issues come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). In accordance with Rice v. Shinseki, entitlement to TDIU has been raised by the record, and is listed as an issue on the title page. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran was scheduled for a hearing before a Veterans Law Judge of the Board at the VA Central Office in Washington D.C. (Central Office hearing), in February 2013. The Veteran failed to appear for the scheduled hearing and no good cause was given for such failure to appeal, barring a future hearing. 38 C.F.R. § 20.702(d). 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 contends that the severity of his service-connected radioculopathy and degenerative disc disease have increased since his most recent May 2009 VA examination. See July 2009 Statement in Support of Claim; February 2013 Informal Hearing Presentation. Given the Veteran's contention that these disorders have increased in severity and the amount of time since the last VA examination, the Veteran should be afforded new VA examinations for the purpose of determining the current severity of these disorders. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Of note, Virtual VA records demonstrate the Veteran was scheduled for a general medical examination in January 2013, but failed to attend that examination without providing good cause for his absence. In this regard, the Board reminds the Veteran that, corresponding to VA's duty to assist him, is a duty on his part to cooperate with VA in developing a claim and that failure to report to an examination may impact his appeal. 38 C.F.R. § 3.655; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board also points out that prior to May 2013, the United States Court of Appeals for Veteran's Claims (Court) had held that there was no requirement that the actual document notifying the Veteran of the time, date, and place be contained in the record for the presumption of regularity to apply. The Court had allowed VA to submit an affidavit of a manager from the VAMC involved to establish the regular practice of mailing such notices. Kyhn v. Shinseki, 24 Vet. App. 228 (2011). However, the Federal Circuit reversed this precedential decision. The Federal Circuit held the Court could not consider such evidence because judicial notice does not extend to affidavits from "a party's employees regarding otherwise unknown internal procedures." Kyhn v. Shinseki, ---F.3d---, 2013 WL 1846562 (CA.Fed., May 03, 2013). As such, not only must the agency of original jurisdiction (AOJ) reschedule the VA examination, but it also must ensure that a copy of the notice letter is incorporated into the claims file (via the paper or the electronic version). Additionally, the Veteran has stated on numerous occasions that his service-connected disabilities render him unable to work; therefore, the issue of TDIU must be considered. Rice v. Shinseki 22 Vet. App. 447 (2009). A TDIU rating may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Presently, the Veteran's total combined rating does not meet the rating criteria for TDIU. However, the remanded increased rating claims may have a bearing on whether he meets the schedular requirements for a TDIU claim. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Thus, additional development is needed in this regard. Finally, the Board notes that the most recent VA medical center records included in the claims file are dated in August 2012. If more recent treatment records exist, such records should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to secure any records which have not been previously secured for inclusion in the claims file, to include any VA treatment records dated after August 2012. All attempts to secure this evidence must be documented in the claims file. If the identified records cannot be located, document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then notify the Veteran of the specific records that it is unable to obtain; explain the efforts VA has made to obtain that evidence; and describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for VA neurological and spine VA examinations. The claims folder is to be made available for the examiner to review, each examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. The examiner must conduct a complete range of motion study on the Veteran's low back. The examiner must record the range of motion observed on clinical evaluation, in terms of degrees. If there is clinical evidence of pain on motion, the examiner must indicate the degree of motion at which such pain begins. The examiner must also state whether the Veteran has muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour. If the Veteran is found to have intervertebral disc syndrome, the examiner must state whether the Veteran experiences incapacitating episodes, defined as periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. If the Veteran is found to experience incapacitating episodes, the examiner must estimate the total duration of the episodes over the previous 12 months. The examiner should also comment on the extent, the Veteran's lumbar spine disability has on occupational impairment. In addition, the examiner must address the severity of the Veteran's right leg symptoms (e.g., whether any neurologic manifestations of the Veteran's low back disability found results in complete or incomplete paralysis of any nerve) and any other neurologic disorders found as a result of the Veteran's service-connected low back disability. Finally, the examiner must also address whether the Veteran's service-connected disabilities (lumbar spine disability, radiculopathy of the right lower extremity, residuals of a fracture of the right hand, and residuals of a fracture of the right nose) render him unable to secure or follow a substantially gainful occupation. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 3. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. Such documentation must be incorporated into the Veteran's claims file, via paper or virtual. 4. Following the Veteran's examinations, and once disability ratings for radioculopathy of the right lower extremity and degenerative disc disease of the lumbar spine are in place, conduct any further development as may be warranted for adjudication of the TDIU claim. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ C. CRAWFORD 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).