Citation Nr: 1324746 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-21 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine with radiculopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from June 1971 to June 1977. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Regional Office (RO) in North Little Rock, Arkansas. The Board notes that in his VA form 9 submitted in May 2009, the Veteran requested a 100 percent disability rating. The RO interpreted this statement as a claim for a total disability evaluation based on individual unemployability (TDIU) and conducted appropriate development. Entitlement to a TDIU was thereafter denied in a June 2010 rating decision, as documented in the Veteran's Virtual VA file. The Board recognizes that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). That said, claims for increased evaluations and TDIU claims may be separately adjudicated. See id. at 454. In this case, following the June 2010 rating decision the claims file does not indicate the Veteran has expressed a desire to appeal the TDIU claim as required pursuant to 38 C.F.R. § 20.1103. Therefore, the issue of entitlement to a TDIU is not on 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 A review of the record reveals that the Veteran's service connected low back disability appears to have not only an orthopedic component, but also a neurologic component. Indeed, this has been recognized previously by VA in awarding the Veteran a grant of service connection for degenerative disc disease of the lumbar spine with radiculopathy (emphasis added). Applicable to the current appeal, the Veteran was given VA compensation and pension examinations in April 2007, March 2008, and March 2009. Each of these examinations focused on the orthopedic aspects of the service-connected low back disorder. In each of these reports, the examiners provided range of motion findings and commented on the effect of and flare-ups. However, although the examiner did not specify which nerves were involved, the April 2007 VA examiner did indicate that the Veteran had low back pain radiating into his legs with occasional numbness, more on the right. Similarly, the March 2008 VA examiner commented that the Veteran had pain which radiated to his legs. Contrastingly, the March 2009 at one point said that the Veteran had right-sided sciatica, and later commented that the Veteran was neurologically normal. Significantly, all three VA examiners treated their contradictory neurologic findings in a cursory manner. None of them gave any indication that any neurological testing had been performed, despite the documentation of the neurological symptoms.. In light of the deficiencies of the April 2007, March 2008, and March 2009 VA examination reports, as well as the Veteran's assertions of increased symptomatology, the Board finds that remand is necessary for the performance of VA examinations of sufficient detail to allow for appropriate application of the Schedule for Rating Disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC must undertake appropriate development to obtain any outstanding treatment records pertinent to the claim. It must also attempt to obtain any other pertinent records identified by the Veteran. If it is unsuccessful in obtaining any pertinent evidence identified by the Veteran, it must so inform the Veteran and his representative and request them to provide the outstanding evidence. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, the AMC/RO must arrange for the Veteran to undergo VA orthopedic and neurological examination(s), by (an) appropriate physician(s), at a VA medical facility. The neurological examination should be conducted first, and that examination report made available to the VA orthopedic examiner in conjunction with his or her examination. The entire claims file must be made available to each physician designated to examine the Veteran, and each examination report must include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays) must be accomplished, and all clinical findings must be reported in detail. Each examiner must set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. Neurological examination - The physician must identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the Veteran's low back. The examiner must clearly identify whether any such problems constitute separately ratable neurological manifestation(s) of the service-connected low back disability. In particular, the examiner must discuss the Veteran's sciatic nerve involvement, if any. Concerning any found neurological symptoms, the examiner must state whether there is complete or incomplete paralysis of the nerve. If incomplete paralysis is present, the examiner must provide an opinion as to whether it is mild, moderate, moderately severe, or severe. Orthopedic examination - The physician must conduct range of motion testing of the thoracolumbar spine (expressed in degrees, with standard ranges provided for comparison purposes). The physician must render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician must indicate the point at which pain begins. In addition, the physician must indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner must express any such additional functional loss in terms of additional degrees of limited motion. If muscle spasm or guarding is present, the examiner must state whether it is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Considering all orthopedic and neurological findings, the physician must also render findings particularly responsive to the criteria for rating intevertebral disc syndrome (IVDS)-specifically, comment as to the existence and frequency of any of the Veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his lumbar spine disability, the examiner must specify their frequency and duration. Finally, the examiner must provide commentary as to the effect of the low back disability, and any associated objective neurological abnormalities, on the Veteran's occupational functioning. 3. The AMC/RO must undertake any other development it determines to be warranted. 4. Then, the AMC/RO must readjudicate the Veteran's claim for an increased rating for a low back disability based on a de novo review of the record. The AMC/RO is specifically requested to consider the applicability of 38 C.F.R. § 3.321(b), as well as Diagnostic Code 5243 regarding associated objective neurological abnormalities. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. 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).