Citation Nr: 1334543 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-25 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of a low back injury. 2. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from May 1976 to April 1978. This matter comes to the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which continued the Veteran's 20 percent disability rating for residuals of a low back injury. During a June 2013 hearing before the Board, the Veteran asserted that he had not worked as a result of his low back disorder. The record raises an informal claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected residuals of a low back injury. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. The issues of entitlement to a disability rating in excess of 20 percent for residuals of a low back injury and entitlement to a TDIU are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND With regard to the claim for a disability rating in excess of 20 percent for residuals of a low back injury, during the June 2013 hearing before the Board the Veteran testified to his increased symptoms since the January 2012 VA examination. In this regard, in addition to the right foot numbness noted on such examination, he further asserted that he currently experienced radicular pain in his bilateral lower extremities. He stated that he regularly wore a back brace and attended physical therapy. He indicated that he took prescribed pain medication at night, however, that he was unable to take the medication during the day because he could not function on the medication. He asserted that he could not exercise due to increased back and right leg pain. He further asserted that he had difficulty with bowel movements and urination as a result of his back injury, and was provided stool softeners. He stated that he experienced incapacitating episodes that lasted all day. He stated that he was unemployed because he could not stand for long periods of time as a result of his residuals of a low back injury. The Board finds that such statements suggest that the Veteran's residuals of a low back injury may have increased in severity since the aforementioned VA examination. Accordingly, the Board finds that another VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) In addition, during the aforementioned hearing, the Veteran asserted that he received ongoing treatment for his residuals of a low back injury at the VA Medical Center located in El Paso, Texas. The record contains VA outpatient treatment records to February 2012; thus, VA must obtain any VA outpatient treatment records from February 2012 to the present. See 38 C.F.R. § 3.159 (c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the Veteran also stated that he received ongoing private treatment from the El Paso Orthopaedic Surgery Group and Center for Sports Medicine. The record contains these private treatment records to August 2009; thus, VA must obtain any additional records from August 2009 to the present, and associate then with the Veteran's claims files. See 3.159 (c)(1) (2013). Additionally, as noted above, the evidence of record raises an informal claim of entitlement to a TDIU. In this regard, during the aforementioned hearing, the Veteran indicated that he was unemployed because of his inability to stand for long periods of time, as a result of his residuals of a low back injury. He further asserted that although he went through VA vocational rehabilitation, and finished a degree in computer science management, he had not been placed in a job. He stated that he tried to sell newspapers, but was not successful because he could not stand. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice, 22 Vet. App. 447 (2009). As the RO has not yet considered the issue of TDIU, the issue must be remanded to the RO for such consideration. Accordingly, the case is remanded for the following actions: 1. The RO must provide the Veteran appropriate notice with respect to the TDIU, that includes an explanation as to the information or evidence needed to substantiate a claim for a TDIU. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to a TDUI, as well as his claim for an increased disability rating for his service-connected residuals of a low back injury. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must attempt to obtain all VA treatment records from the VA Medical Center in El Paso, Texas, from February 2012 to the present, as well as any private treatment records from the El Paso Orthopaedic Surgery Group and Center for Sports Medicine since August 2009 to the present. The RO must also attempt to obtain the Veteran's VA vocational rehabilitation records. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 3. The RO must provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO, for the purpose of obtaining a detailed, post-service work history. 4. Upon completion of the above development, the Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected residuals of a low back injury. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine the active range of motion of the Veteran's thoracolumbar spine, in degrees, by use of a goniometer noting by comparison the normal range of motion of the thoracolumbar spine. If pain on motion of the thoracolumbar spine is shown, the examiner must state at what degree the pain begins. The examiner must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected residuals of a low back injury, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Additionally, an opinion must be stated as to whether any pain found in the thoracolumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The examiner must also state whether the Veteran has intervertebral disc syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71, and the frequency and total duration of such episodes over the course of the past 12 months. All indicated testing must be conducted, including a thorough neurologic examination of the Veteran's low back. All pertinent symptomatology and findings must be reported in detail. The examiner must specifically state whether any neurologic manifestations found are caused by the Veteran's service-connected residuals of a low back injury. The examiner must also specifically state whether any neurologic manifestation found results in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of his claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must then readjudicate the issue of entitlement to a disability rating in excess of 20 percent for residuals of a low back injury. The RO must also adjudicate the issue of whether a TDIU is warranted, with consideration of 38 C.F.R. § 4.16(b) (2013). If any issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).