Citation Nr: 1328968 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 04-18 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a rating higher than 40 percent for a lumbar spine disability post-laminectomies and discectomies with degenerative disc disease of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and L.G. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to September 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which in part, continued a 40 percent evaluation for a lumbar spine disability and denied entitlement to TDIU. In June 2004, the Veteran and L.G. testified during a Decision Review Officer (DRO) hearing at the RO. A transcript of that hearing is of record. This appeal was previously before the Board in August 2007, when the Board remanded the claims for further development. Following completion of such, this matter was returned to the Board for further consideration. In October 2010, the Board, in pertinent part, denied the Veteran's TDIU claim, and remanded the issue of entitlement to an increased rating for his service-connected lumbar spine disability for further development. The Veteran appealed the Board's October 2010 decision as to the denial of entitlement to TDIU to the U.S. Court of Appeals for Veterans Claim (Court). In September 2011, the Court granted a Joint Motion for Remand, vacating that portion of the October 2010 Board decision that denied entitlement to TDIU and remanding the claim to the Board for compliance with the Joint Motion directives. With regards to the issue of entitlement to a rating higher than 40 percent for the lumbar spine disability, this matter was remanded by the Board in the October 2010 decision for additional development, and thus was not part of the above described appeal to the Court. In August 2012 the Board remanded the claims for additional development, which has been completed. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In August 2013, the Board received a statement from the Veteran's treating physician, Dr. Calhoon, suggesting that the Veteran's back disability has caused loss of urinary control at times. However, treatment records from this private physician dating to October 23, 2012, note the Veteran either denying urinary complaints or complaining of nocturia. The treatment record containing such complaint also notes a diagnosis of benign hypertrophy of the prostate. None of the records from this provider note the Veteran reporting urgency, frequency, or incontinence. In fact, the July 2012 report notes the Veteran specifically denying such. Accordingly, it appears that records from this provider dating since October 23, 2012 may provide additional relevant information, and such should be requested on remand. After such is accomplished, the claims file should be returned to the February 2013 VA examiner for an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide a completed release form for Dr. Calhoon so that additional records from that physician can be requested. After securing the necessary release, the RO/AMC should ask Dr. Calhoon to provide copies of all treatment records for the Veteran dating since October 23, 2012. If the requested records are not received, the Veteran should be advised of such. 2. After the above has been completed to the extent possible and the additional records associated with the file, return the claims folder to the examiner who conducted the February 2012 spine examination, if available. If an additional examination is deemed necessary to respond to the questions, one should be scheduled. If the original examiner is not available, the file should be provided to another examiner of similar or greater qualifications to respond to this request. Following review of the claims file (and any examination deemed necessary) the examiner should respond to the following: a. Please opine whether the genitourinary complaints such as "loss of urinary control at times" as reported in the June 5, 2013 letter from Dr. Calhoon and the nocturia noted in that physicians treatment records in October 2012, is at least as likely as not (50 percent probability or greater) due to the Veteran's service connected lumbar spine disorder, or is more likely related to the Veteran's diagnosed benign prostatic hypertrophy. Please explain the reason for the conclusion reached. b. After reviewing any additional treatment records from Dr. Calhoon received in response to this remand, is there any change in your prior opinion that the Veteran is capable of sedentary employment? Please explain why or why not. 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefits sought on appeal remain denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ K. A. BANFIELD 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).