Citation Nr: 1327378 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-20 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating (evaluation) in excess of 20 percent for a thoracolumbar strain, status post Morbus Scheuermann's disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Carolyn Kerr, Agent ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1982 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which granted a 20 percent increased rating for thoracolumbar strain, status post Morbus Scheuermann's disease. The Veteran appealed the increased rating assigned in this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office via the Appeals Management Center in Washington, DC. REMAND Increased Rating for Thoracolumbar Strain, S/P Morbus Scheuermann's Disease The Veteran was awarded service connection for the disability on appeal in an April 1992 rating decision and assigned a zero percent rating. In the rating decision on appeal, the RO granted a 20 percent rating. The Veteran's thoracolumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5237 (2012), and is rated using the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides for a 40 percent disability rating on evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. The Veteran currently resides in Germany. VA contacted with a local physician to provide the Veteran with an examination for rating purposes in February 2011. During the examination, the examiner recorded the Veteran's ranges of motion of the back; however, only thoracolumbar rotation from a seated position and bilateral lateral bending were recorded. A rating cannot be properly determined assessed without a record of the Veteran's current range of forward flexion. The Board finds that that matter must be remanded for an additional VA examination as there is currently insufficient medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 4.1 (2012) (accurate and fully descriptive examination reports are required for rating disabilities); 38 C.F.R. § 4.2 (2012) (if an examination report does not contain sufficient detail, the VA adjudicator should return the report as inadequate for rating purposes). Service Connection for Separate Neurologic Defects For claims in which symptoms of a neurologic defect have been claimed or found, 38 C.F.R. § 4.120 (2012) dictates that neurological conditions are to be rated in proportion to the impairment of motor, sensory or mental function. Under 38 C.F.R. § 4.124a (2012), disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2012); see 38 C.F.R. § 4.124 (2012). In an April 2010 rating decision, service connection for lumbar radiculopathy of the right lower extremity, secondary to thoracolumbar strain, status post Morbus Scheuermann's disease, was granted. In a rating decision of July 2011, service connection for erectile dysfunction was granted, also due to the low back. A review of the claims file indicates evidence of additional neurologic disorders which may be associated with service-connected thoracolumbar strain, including evidence of positive Lasegue sign in the left lower extremity and changes in lower extremity reflexes. Based on the foregoing, the Board finds that additional examination is required in order to help identify all neurologic disorders related to service-connected thoracolumbar strain, status post Morbus Scheuermann's disease. TDIU An April 2007 medical certificate indicates that the Veteran is unable to work due to severe pain. In a June 2008 statement, the Veteran contended that "disabilities affect [him] to the point that [his] present employer is mobbing [him] on the job, because he wants to replace [the Veteran]." In effect, the Veteran has raised the issue of entitlement to TDIU. While the issue of TDIU entitlement has not been adjudicated by the RO, it is on appeal as a component of the increased rating claim for thoracolumbar strain, status post Morbus Scheuermann's disease. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). The issue of TDIU has not been addressed by the RO; thus, the issue of TDIU must be remanded for initial adjudication. Accordingly, the issues of increased rating for back disability and TDIU are REMANDED for the following action: 1. Schedule the Veteran for an examination of the spine and neurologic systems. On examination, the examiner should answer the following questions: a. How many degrees of forward flexion does the Veteran have in his thoracolumbar spine? b. At what degree of forward flexion of the spine does pain begin? c. Is the Veteran's entire thoracolumbar spine ankylosed, and, if so, is ankylosis favorable or unfavorable? d. Is the Veteran's entire spine ankylosed? e. What, if any, are the additional functional losses of range of motion due to pain, excess fatigability, weakness, and any additional disability during flare-ups? The examiner should also note all neurologic abnormalities. For each neurologic abnormality identified, other than erectile dysfunction and radiculopathy of the right lower extremity, the examiner should: a. State whether the abnormality is related to service-connected thoracolumbar strain, status post Morbus Scheuermann's disease, and; b. describe the level of severity and the limitation or limitations caused the abnormality. 2. The RO should adjudicate the claim for TDIU, to include satisfying all notice and development requirements. If a determination unfavorable to the Veteran is made on the matter, the Veteran and the Veteran's representative should be provided with a statement of the case that addresses all relevant actions taken on the claim. 3. After completing all indicated development, readjudicate the claim for entitlement to an increased rating (evaluation) in excess of 20 percent for a thoracolumbar strain, status post Morbus Scheuermann's disease in light of all the evidence of record. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ J. PARKER 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).