Citation Nr: 1325915 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-26 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 20 percent for orthopedic manifestations of mechanical low back strain. 2. Entitlement to an initial disability evaluation in excess of 20 percent for peripheral neuropathy of the right lower extremity. 3. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to January 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In that decision, the RO granted service connection for mechanical low back strain and assigned an initial disability rating of 20 percent, effective the date the Veteran's claim was received in February 2009. It also denied entitlement to TDIU. In a June 2012 rating decision, the RO granted service connection for peripheral neuropathy of the right lower extremity and of the left lower extremity and assigned initial disability ratings effective the date his claim of entitlement to service connection for a back disability was received in February 2009. The RO explained that the neuropathy was due to his spine disability. The Veteran did not file any document with VA expressing disagreement with the June 2012 decision. However, the lower extremities peripheral neuropathy are manifestations of the Veteran's mechanical low back strain. When the Veteran disagreed with the amount of compensation awarded for mechanical low back strain, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for disability due to his mechanical low back strain. See AB v. Brown, 6 Vet. App. 35 (1993). Moreover, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1) (2012). The Board was therefore required to consider whether ratings were warranted for neurologic abnormalities associated with the low back condition. For these reasons, the Board concludes that when the Veteran appealed the initial rating assigned for his mechanical low back strain, his appeal encompassed ratings for all manifestations of the condition. The award of the ratings for peripheral neuropathy in the June 2012 decision could not limit the Board's jurisdiction to less than it had acquired via the August 2010 notice of disagreement. Now the Board turns to another preliminary matter. In the September 2011 VA Form 9 substantive appeal, the Veteran requested a Board hearing to be held at the local VA office. In March 2013, the RO sent a letter to his address of record notifying him of the date, time, and place of the requested hearing scheduled in May 2013. Associated with the claims file is documentation showing that the Veteran failed to appear for the hearing. There is no indication of good cause for failing to appear. Thus, the hearing request is considered withdrawn. 38 C.F.R. § 20.702(d) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand is necessary so that VA can fulfill its duty to assist the Veteran by providing a medical examination and obtaining an expert opinion. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159(c)(4), 4.1 (2012). In June 2010, the Veteran underwent a VA examination of his spine. In January 2012, he underwent a VA neurological examination. Both examination reports include comments as to whether his service connected spine disability rendered him unemployable. However, neither examination provides an adequate opinion as to whether he is unemployable due his spine disability. A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is found to be unable to secure and follow a substantially gainful occupation. 38 C.F.R. § 4.16 (2012). This total rating is referred to as TDIU. If, there is only one service-connected disability and the disability is rated as 60 percent or more, the RO has jurisdiction to grant the total rating, on a schedular basis, in the first instance. 38 C.F.R. § 4.16(a). Here the Veteran has one disability of a common body system (lumbosacral spine) for TDIU purposes and that disability has been assigned 10 percent rating and two separate 20 percent ratings. Such equates to a combined rating of 40 percent. 38 C.F.R. § 4.25. In other words, at the present time, the 60 percent criterion has not been met. In such cases, if a total rating is warranted based on the inability to secure and follow a substantially gainful occupation due to service-connected disability, then neither the Board nor the RO can grant TDIU in the first instance. Rather, the question of entitlement to TDIU must first be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). On remand, after providing the examination, obtaining the expert opinion, and obtaining any outstanding VA treatment records, the RO must submit all pertinent evidence to the Director, Compensation and Pension Service, for extraschedular consideration of entitlement to TDIU. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of relevant VA treatment of the Veteran and associate such records with the claims file. If there are no such records, obtain a negative reply and associate documentation of the reply with the claims file. 2. After completing the above development, ensure that the Veteran is scheduled for a VA examination of his spine. The examiner is asked to accomplish the following: (a) Conduct range of motion studies of the thoracolumbar spine and address whether there is additional functional loss due to painful motion, excess fatigability, weakness, or during flare-ups. (b) Address whether there is ankylosis of the thoracolumbar spine. (c) Provide findings as to the frequency and duration of any physician-prescribed bedrest (i.e., incapacitating episodes) caused by his low back disability. (d) Provide findings as to the symptoms and severity (mild, moderate, moderately severe, or severe) of peripheral neuropathy of his right and left lower extremities. (e) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the orthopedic and neurologic manifestations of his low back disability render him unable to secure and follow a substantially gainful occupation. The examiner must provide rationale (explanation of the examiner's reasoning at arriving at a conclusion) for any opinion rendered. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Then, the RO/AMC must readjudicate the issues of entitlement to higher initial ratings of the orthopedic and neurologic manifestations of his service connected low back disability. If the percentage requirements of 38 C.F.R. § 4.16(a) are then met for the full period on appeal, the RO/AMC must readjudicate the issue of entitlement to TDIU on a schedular basis. If the percentage requirements of 38 C.F.R. § 4.16(a) are not then met for all periods on appeal, the RO/AMC must refer the issue of entitlement to TDIU to the Director, Compensation and Pension Service for extraschedular consideration for TDIU for any period for which the percentage requirements of 38 C.F.R. § 4.16(a) are not met and readjudicate the TDIU issue for any period on appeal for which those percentage requirements are met. In such submission to the Director, Compensation and Pension Service, the RO/AMC must include a full statement as to the Veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 4. If any benefit sought on appeal is not granted in full, provide the Veteran with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. Thereafter, return the matters to the Board for further appellate review. 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). _________________________________________________ MICHAEL A. HERMAN 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).