Citation Nr: 1329898 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 12-28 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating for degenerative arthritis of the lumbar spine, currently rated as 10 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John R. Worman, Attorney at law ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1979 to August 1983. This case comes before the Board of Veterans Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the Veteran's claim for a rating in excess of 10 percent for degenerative arthritis of the lumbar spine. The evidence of record, including an October 2012 private treatment record, indicates that the Veteran has reported he lost his job due to his service-connected back disability. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (CAVC or Court) held that VA must address the issue of entitlement to TDIU in increased rating claims, as here, where the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought. Thus, the Board has jurisdiction over the Veteran's TDIU claim, which is listed as a separate issue on the title page. The Veteran has raised the issue of service connection for depression. See April 2012 correspondence and February 2013 VCAA letter. Though it appears that development was contemplated as reflected in a March 2013 deferred rating decision, adjudication of this service connection claim has not yet been accomplished by the Agency of Original Jurisdiction (AOJ). Therefore, it is REFERRED to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary before a decision may be rendered in this case. A review of the electronic records maintained in the Virtual VA system includes medical records from the VAMC in Hanson, Kentucky which show the Veteran having sought treatment for increasing back pain in October 2011. The back pain was of sudden onset when the Veteran was helping to change a tire. The records also show that the Veteran was seen again in April 2012, after his wife called saying the Veteran was having increased back pain. She stated that the Veteran's pain was worsening and that he was taking more pain medication that what was ordered. The Veteran's disability was last examined by VA in April 2011, more than two years ago. Therefore, a new VA examination is needed to determine the current severity of the Veteran's service-connected back disorder. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Private medical records from Pennyroyal Mental Health dated August 2012 and October 2012 show that the Veteran stated that he lost his job due to missing too many days of work because of back pain. The issue of a TDIU has been reasonably raised by the record, and is properly before the Board by virtue of his increased rating claim pursuant to Rice. Thus, the examination requested should include a medical opinion addressing whether the Veteran's service-connected low back disability renders him unable to secure and follow a substantially gainful occupation. A May 23, 2013, inpatient treatment record from Deaconess Health System notes that the Veteran is receiving disability through his employer, Tyson Foods. The May 2013 Deaconess Health System discharge summary reported that the Veteran had taken leave from work for elbow surgery, a nonservice-connected condition, in October 2012; had returned to work to avoid losing his job; and had again left work a month later. Attempts should be made to develop all records from his employer related to these disability payments as well as all treatment records pertaining to his 2012 elbow surgery. Accordingly, the case is REMANDED for the following action: 1. Obtain any ongoing VA treatment records from the Hanson, Kentucky VA Medical Center subsequent to August 2012 that have not yet been associated with the claims file or Virtual VA eFolder. 2. Contact the Veteran and request that he complete the necessary authorizations to release records from: a. Tyson Foods, his (former) employer, to include copies of all available records pertaining to disability payments and leave records; and b. Medical treatment providers who performed his October 2012 elbow surgery and any subsequent treatment. With respect to these records, the Veteran must adequately identify the treatment providers. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and current level of severity of his service-connected degenerative arthritis of the lumbar spine. The entire claims folder (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) must be made available to and reviewed by the examiner. The examiner is requested to give an opinion as to the effect that the service-connected degenerative arthritis of the lumbar spine has on the Veteran's ability to engage in a substantially gainful occupation, including manual and sedentary positions. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience (treatment records show employment with Tyson Foods), but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. For purposes of this opinion it is noted that (1) an October 2012 Pennyroyal Mental Health treatment record noted that he reported completing high school and is in his fifth semester at community college; and (2) May 2013 records from Deaconess Health System reported that the Veteran was receiving disability through his employer and had taken leave from work for elbow surgery, a nonservice-connected condition, in October 2012. The opinion provider should explain the rationale for all opinions given. 4. After undertaking any other development deemed appropriate, the RO should readjudicate the issue, to include TDIU, on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. Then return the case to the Board for further review if otherwise in order. 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). _________________________________________________ M.C. GRAHAM Acting 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).