Citation Nr: 1321376 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 10-08 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for a low back injury with degenerative disc disease, currently evaluated at 40 percent disabling. 2. Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected low back injury with degenerative disc disease. 3. Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from June 1962 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of 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 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 required before the Veteran's appeal can be adjudicated. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran seeks (1) an increased rating for his service-connected low back injury, and (2) compensation for a right hip condition, secondary to his low back injury. He filed his claims in August 2008, fourteen months after having hip replacement surgery. See June 2007 private treatment record. The RO denied his claims in November 2008. In a June 2011 statement, he stated that "his medical condition has changed," and he instructed the RO that this change would be seen in treatment records at the West Palm Beach VAMC. Despite this statement, the RO did not obtain these VA treatment records. Given the evidence the Veteran has submitted, the Board believes there are VA treatment records that have not been associated with the claims file. Records generated by VA facilities that may impact the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims files. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, on remand, the AMC should obtain any unassociated VA treatment records from the West Palm Beach VAMC, dated since October 2009. Additionally, the Veteran was afforded a VA examination in October 2008. The VA examiner concluded that the hip disorder was less likely than not caused by or a result of the low back injury. However, an opinion as to aggravation was not provided. The question of aggravation is an integral part of a secondary service connection claim, see 38 C.F.R. § 3.310(b), and the absence of an answer to this question requires remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Therefore, a new medical examination is required on remand. The evidence of record also raises the issue of entitlement to a TDIU. Specifically, the Veteran, in a July 2012 statement, noted that "over the past few years since I put this appeal in motion my condition has worsen (sic)." He believes he is "totally unemployable," and to that end, submitted a private treatment record. The United States Court of Appeals for Veterans Claims has held that there is no freestanding claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). The matter is a component of the appeal for a higher increased rating regarding the service-connected low back condition. Id. at 452-53. As such, it is necessary for the Board to remand the issue. On remand, the RO will have the opportunity to include the issue in a new notice letter, ask the prospective VA examiner to address the matter, and adjudicate the issue in the first instance. As the case must be remanded for the foregoing reasons, and because more than four years have passed since the Veteran's last VA examination of his back, he should also be afforded a current VA examination in order to assess the severity of his service-connected low back injury with degenerative disc disease. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran about (1) the information and evidence not of record that is necessary to substantiate his claim for a TDIU; (2) the information and evidence that VA will seek to obtain on his behalf; and (3) the information or evidence that he is expected to provide. A copy of this notification must be associated with the claims folder. 2. Make arrangements to obtain the Veteran's treatment records from the West Palm Beach VAMC, dated since October 2009. 3. Thereafter, schedule the Veteran for a VA examination of his right hip. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must identify all current right hip disabilities. Any indicated tests to determine the diagnosis should be accomplished. The examiner should provide an opinion as to whether it is least as likely as not (i.e., 50% or greater probability) that any current right hip disorder, including the Veteran's right hip replacement, is proximately due to, or the result of, his low back injury with degenerative disc disease. The examiner should also provide an opinion as to whether it is least as likely as not (i.e., 50% or greater probability) that any current right hip disorder, including the Veteran's right hip replacement, is permanently aggravated by his low back injury with degenerative disc disease. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Schedule the Veteran for a VA orthopedic/neurological examination of his lumbar spine. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. (a) Identify any orthopedic and neurological findings related to the Veteran's service-connected low back injury with degenerative disc disease and fully describe the extent and severity and those symptoms. (b) Provide the ranges of motion of the Veteran's lumbar spine. (c) Determine whether range of motion is reduced by weakness, fatigue, incoordination, swelling, deformity or atrophy of disuse, or pain. Critically, if pain on motion is found, state whether this pain is debilitating, i.e. actually affects the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. (d) If the examiner finds that pain actually causes limitation of motion as described above (as opposed to mere pain on motion that is not of sufficient severity to cause additional limitations), note the additional degree of limitation in terms of degrees, if possible. (e) Determine whether (i) repetitive use or (ii) flare-ups produce additional limitation of motion due to weakness, fatigue, incoordination, swelling, deformity or atrophy of disuse, or debilitating pain. If the Veteran's range of motion is likely to be further reduced by debilitating pain due to repetitive use or flare-ups, so state this fact and, if possible, describe the additional degree of limitation in terms of degrees. (f) State whether and to what extent the Veteran's lumbar spine disability causes instability, disturbance of locomotion, and/or interference with sitting, standing, and weight-bearing. (g) With regard to any neurological disability resulting from the service-connected lumbar spine disability, specify the specific nerve(s) affected together with the degree of paralysis caused by the service-connected disability. (h) Indicate whether the Veteran has experienced incapacitating episodes due to his lumbar spine disability. (An 'incapacitating episode' is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1)). (i) If the examiner determines that the Veteran has experienced incapacitating episodes due to his lumbar spine disability, as defined in the rating criteria, determine (i) when each incapacitating episode occurred and (ii) the duration of each incapacitating episode. This description must be sufficient to allow VA to determine the total duration of all incapacitating episodes during any 12 month period on appeal. (j) Provide an opinion with respect to whether the Veteran's service-connected low back injury with degenerative disc disease renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Next, review the medical examination reports obtained to ensure that the remand directives have been accomplished, and return the case to the examiner(s) if all questions posed are not answered. 6. Finally, readjudicate the claim on appeal. If the claims remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate time for response. 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). _________________________________________________ P.M. DILORENZO 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).