Citation Nr: 1333842 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-02 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to July 1986. In August 2010, the Veteran raised the issue of entitlement to a TDIU and the Board of Veterans' Appeals (Board) took jurisdiction of this issue per Rice v. Shinseki, 22 Vet. App. 447 (2009). This matter was remanded in January 2012 and August 2012. In an August 2012 rating decision, the RO implemented the Board's August 2012 grant of service connection for radiculopathy, right lower extremity, assigning a 10 percent disability rating, effective November 29, 2007. In an August 2012 rating decision, the RO assigned a temporary total rating to service-connected degenerative disc disease, lumbar spine with radiculopathy, pursuant to 38 C.F.R. § 4.30 due to undergoing a lumbar fusion on June 20, 2012. The rating is in effect from June 20, to October 31, 2012, and effective November 1, 2012, the 20 percent rating assigned to degenerative disc disease, lumbar spine with left lower extremity radiculopathy was reassigned. The issue of entitlement to numbness in his left, upper side, as secondary to his service-connected degenerative disc disease, lumbar spine, was raised in a November 2012 submission from the Veteran's representative. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Regional Office (RO) via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required. REMAND The Veteran contends that he is unable to work due to his low back disability. Additionally, a September 2010 VA outpatient record documents that the Veteran is unemployable. In March 2011, the Veteran underwent a L3-L4 extreme lateral interbody fusion. A June 2011 VA examiner opined that the Veteran was unable to secure and maintain gainful employment at that time due to his service-connected low back disability. He indicated that the Veteran could not engage in either physical or sedentary employment, as his low back disability limited his ability to stand for more than 20 to 30 minutes at a time or to perform any heavy lifting. It was also noted that the Veteran was on a narcotic pain regimen that would significantly impair his safety in the workplace. The examiner stated that as the Veteran received treatment and recovers from surgical intervention, he might be able to return to the work force, although not likely as a truck driver. In August 2012, the claim was referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). In October 2012, the Director opined that consideration the totality of the evidence does not support the criteria for an extra-schedular finding of unemployability. The Director stated that the Veteran was recovering from a spinal fusion with no permanent and total disability shown. The Director acknowledged the VA examiner's finding that the Veteran, in his current condition, was not employable, but that future employment was possible when healed from surgery. The Director found that there has been no overall finding of unemployability. Thus, extra-schedular entitlement to a TDIU was not warranted. The medical evidence of record reflects that the Veteran underwent a lumbar fusion in June 2012; he was granted a temporary total rating pursuant to 38 C.F.R. § 4.30 effective June 20 to October 31, 2012. A 20 percent rating was reassigned to degenerative disc disease, lumbar spine with radiculopathy, effective November 1, 2012. The medical opinion of the June 2011 VA examiner was offered subsequent to the March 2011 lumbar spine surgery and when the Veteran was still recovering from the surgery. The examiner opined that after he recovered from surgical intervention, he may be able to return to the work force. Thereafter, a year later, the Veteran underwent another lumbar surgery. The Board finds that in light of the second surgical intervention, another opinion should be obtained with regard to the Veteran's employability. The Board also notes that in the VA Form 21-8940 received in July 2012, the Veteran asserted that he had applied for VA vocational rehabilitation benefits but did not take training. Any vocational rehabilitation assistance could prove relevant to the TDIU claim and the Veteran's vocational rehabilitation folder should be associated with the claims folder or Virtual VA. Finally, the Veteran's claim of service connection for numbness, left upper side, is inextricably intertwined with the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). In light of this matter being remanded, associate with the claims folder or Virtual VA updated VA treatment records from the Martinez, Phoenix, and San Francisco VA Medical Centers (VAMCs). Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Adjudicate the claim of entitlement to service connection for numbness, left upper side, claimed as secondary to service-connected degenerative disc disease, lumbar spine. 2. Associate with the claims folder or Virtual VA the Veteran's vocational rehabilitation folder. 3. Associate updated VA treatment records with the claims folder or Virtual VA from the following medical facilities: (a) Martinez VAMC dated from March 24, 2013; (b) Phoenix VAMC dated from January 17, 2013; (c) San Francisco VAMC dated from February 20, 2013. 3. Thereafter, schedule the Veteran for a VA examination with a physician with appropriate expertise to assess whether he is unable to maintain gainful employment as a result of his service-connected disabilities. It is imperative that the claims file be made available to and reviewed by the examiner in connection with the examination. The examiner should opine whether the Veteran's service connected disabilities (degenerative disc disease, lumbar spine with left lower extremity radiculopathy, status post lumbar fusion, radiculopathy, right lower extremity, and any other disabilities found to be service-connected) in combination preclude gainful employment for which his education and occupational experience would otherwise qualify him for any period from August 2010. The examiner must provide reasons for the opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. The AMC/RO should review the entirety of the record and determine whether it sufficiently indicates that the Veteran may have been unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. If so, the AMC/RO should refer the matter to the Undersecretary for Benefits or to the Director of Compensation and Pension Services for extraschedular consideration per 38 C.F.R. § 4.16(b). If the matter is not referred, the basis for that determination must be explained. 5. After completion of the above, review the expanded record and readjudicate entitlement to a TDIU. If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have the right to submit additional evidence and argument on the matter 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). _________________________________________________ ERIC S. LEBOFF 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).