Citation Nr: 1334949 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 04-41 532A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to an increased rating for a lumbar spine disability, currently rated as 20 percent disabling. 3. Entitlement to a higher initial rating for right lower extremity radiculopathy associated with a lumber spine disability, rated as 10 percent disabling from February 9, 2004 and 20 percent disabling from December 21, 2012. 4. Entitlement to an increased rating for a cervical spine disability, currently rated as 20 percent disabling. 5. Entitlement to an increased rating for a bilateral foot disability, currently rated as 10 percent disabling. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 1, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to January 1980, and from July 1988 to December 1996. This matter comes before the Board of Veterans Appeals (Board) from September 2003 and October 2004 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs) in Columbia, South Carolina and St. Petersburg, Florida. Thereafter, a June 2013 rating decision from the Appeals Management Center (AMC) granted a 20 percent rating for service-connected right lower extremity radiculopathy effective December 21, 2012. On a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Since the grant of the 20 percent rating is not a full grant of the benefits sought on appeal, and the Veteran did not withdraw his claim of entitlement to a higher initial rating, the matter remains before the Board for appellate review. In March 2008, the Veteran testified before the Board at a hearing that was held at the Columbia RO. A transcript of this hearing is of record. In April 2009 and November 2012, the Board remanded the claims for additional development. The case is again before the Board for appellate review. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND As a preliminary matter, the Board observes that records are missing from the Veteran's claims file. In this regard, a September 2010 rating decision from the St. Petersburg RO found that the Veteran's claim for TDIU, noted to be received October 9, 2009, was moot. However, the records relied upon to make this determination listed in the "Evidence" section of the rating decision, to include the claim and Social Security Administration (SSA) records, are not in either the paper claims file or the Virtual VA file. The Board observes that correspondence between the St. Petersburg RO and the Columbia RO from approximately November 2007 to October 2009 indicates that there was a question as to which RO had jurisdiction over the Veteran's claims file. An October 2009 Permanent Transfer Report reflects that the case was transferred to the Columbia RO. As there appears to be missing evidence of record dated from October 2009 to May 2010 as stated under the "Evidence" heading in the September 2010 rating decision, a remand is necessary to attempt to obtain it. In November 2012, the Board remanded the claims for service connection for a bilateral hip disability and increased ratings for service-connected lumbar spine, cervical spine, right lower extremity radiculopathy, and bilateral foot disability for VA examinations and to obtain current VA treatment records. A review of the Veteran's Virtual VA file reflects that VA records dated from March 2008 to May 2013 have been associated and that VA examinations were obtained in December 2012. However, it appears that the VA examinations are inadequate upon which to base a determination, and another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, the VA examiner was asked to describe the functional impact of the Veteran's service-connected disabilities on his ordinary activities of life and on his occupational activities. The examiner commented that the service-connected lumbar spine disability affects the Veteran's ability to function and walk. The examiner added that the Veteran's activities of daily living are affected because he has difficulty doing routine household chores and tying his shoes. Although the examiner addressed how the Veteran's lumbar spine disability has affected his daily activities, the examiner did not address how his cervical spine, right lower extremity radiculopathy, and bilateral foot disability affected his daily activities. Moreover, despite the examiner's recording of the Veteran's statement that he was unemployed and medically retired secondary to mental health issues and assertion that even if he was not medically retired, he could not work because of his chronic neck and lower back pain, the examiner did not provide an opinion as to how the Veteran's service-connected disabilities affect his employability. Specific to the cervical spine disability, the examiner was asked to address the pain and numbness that the Veteran experiences in his left arm, which is associated with the neurological manifestations of his cervical spine disability. It was noted that if a separate neurological examination was needed, one should be scheduled. Although the Board observes that the Veteran denied radiation of neck pain during the examination, he has complained of pain and numbness during the pendency of the appeal. Accordingly, the Board concludes that a neurological examination should be scheduled to address the severity of this manifestation of his service-connected cervical spine disability. The Board also notes that following his April 2003 claims for increased ratings for his service-connected cervical and lumbar spine disabilities, VA amended the rating schedule for evaluating disabilities of the spine, which became effective on September 26, 2003. See 67 Fed. Reg. 54349 (August 22, 2002); 68 Fed. Reg. 51456 (August 27, 2003). As the Veteran could potentially receive a higher evaluation under the version of the regulations in effect prior to September 26, 2003, on remand the examiner should be asked to address whether the Veteran's cervical and lumbar spine disabilities were productive of slight, moderate, or severe impairment. Additionally, the examiner was asked to discuss any limitation of motion, objective evidence of pain, and any functional loss associated with pain related to his bilateral foot disability. The examiner was also asked to classify the overall disability as either moderate, moderately severe, or severe and to explain the conclusion reached. However, the examiner did not make such findings. With regard to the requested opinion as to whether the Veteran's current bilateral hip disability was either directly related to service or secondary to another service-connected disability, the examiner responded that there was no objective evidence linking the hip disabilities to his service or that his feet or spine disabilities facilitated his hip disabilities. The examiner noted that there was no evidence stating that the hips were "injected" while in service. It is unclear what the examiner meant by "injected." Further, the examiner did not provide a rationale for the opinion, to include an explanation of the significance of the lack of objective evidence linking the hips to service or to another service-connected disability. Additionally, a February 2013 VA field examination report reflects that the Veteran is in receipt of Supplemental Security Income (SSI) disability. As noted above, SSA records were apparently reviewed by VA but are not currently in the claims file. As the SSI records are potentially relevant to the claims on appeal, and were at one point part of the record, and they must be requested. Golz v. Shinseki, 590 F. 3d 1317, 1320-1321 (Fed. Cir. 2010) (when the evidence indicates that the Veteran is in receipt of SSA disability payments, VA's duty to assist requires that it seek the SSA's disability determination and the medical records underlying it when these records are relevant to the claims). Lastly, the September 2010 rating decision noted that the Veteran asserted in a December 2009 VA Form 21-8940 that he could not work due to his service-connected depression and non-service connected heart disorder. Later during his December 2012 VA examination, the Veteran asserted that he cannot work due to his service-connected cervical and lumbar spine disability. The Board notes that if 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, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board observes that the Veteran is in receipt of a 100 percent rating effective October 1, 2009 for his service-connected depression, which can moot a claim for TDIU. However, the Veteran filed his claims for increased ratings for his service-connected lumbar spine and cervical spine in April 2003. Thus, because the claim for TDIU is considered part and parcel to the claims for increased ratings, it is possible that a total rating could be awarded prior to October 1, 2009. Accordingly, a claim for TDIU prior to October 1, 2009 is still on appeal. Accordingly, the case is REMANDED for the following actions: 1. Attempt to obtain the missing evidence from the Veteran's claims file, which includes the records under the "Evidence" heading on the September 2010 RO decision. In particular, the Columbia and St. Petersburg ROs should be requested to search their facilities. All attempts to locate this missing evidence should be documented and if the records cannot be located, the record should be rebuilt accordingly. 2. Associate all VA treatment records dated from May 2013 to the present with the claims file. 3. If not obtained under #1, after securing any necessary release, obtain the Veteran's SSA/SSI disability records. 4. After the above development has been completed, the Veteran should be afforded VA examinations to ascertain the severity and manifestations of his service-connected cervical spine, lumbar spine, right lower extremity radiculopathy, and bilateral foot disability. Any and all studies, tests, and evaluations deemed necessary by the examiners should be performed. The examiners are requested to review all pertinent records associated with the paper and Virtual VA claims files and to comment on (1) the severity of the Veteran's service-connected disabilities, and (2) the impact of each service-connected disability on the Veteran's daily activities and his ability to maintain employment. The Board requests that each examination be completed using the Disability Benefits Questionnaire form. Additionally, specific instructions for each disability are listed below. a) Cervical Spine Disability: Both an orthopedic and neurologic examination should be provided. The neurologic examination should address whether the service-connected cervical spine causes any neurological impairment, to include the pain and numbness that the Veteran experiences in his left arm during the course of this appeal. The examiner should identify the nerve involved, address the severity of any such impairment, and provide reasoning for the conclusion reached. The orthopedic examination should address whether the cervical spine is productive of slight, moderate, or severe impairment with reasoning and rationale for the conclusion reached. b) Lumbar Spine Disability: Both an orthopedic and neurologic examination should be provided. The neurologic examination should address whether the service-connected lumbar spine causes any neurological impairment, in addition to the service-connected right lower extremity radiculopathy. The examiner should identify the nerve involved, the severity of any such impairment, and provide reasoning for the conclusion reached. The orthopedic examination should address whether the Veteran's lumbar spine is productive of slight, moderate, or severe impairment with reasoning and rationale for the conclusion reached. c) Right Lower Extremity Radiculopathy: A neurologic examination should be provided. The neurologic examination should address whether the service-connected right lower extremity radiculopathy causes any neurological impairment, and whether any such impairment is mild, moderate, moderately severe, or severe with marked muscular atrophy with reasoning and rationale for the conclusion reached. d) Bilateral Foot Disability: An orthopedic examination should be provided. The examination should address any and all symptomatology manifested by the Veteran's service-connected bilateral foot disability. The examiner should classify the overall impairment of the feet as moderate, moderately severe, or severe and provide reasoning and rationale for the conclusion reached. 5. After the development in #1 through #3 has been completed, schedule the Veteran for a VA examination to evaluate his claim for service connection for a bilateral hip disability. The examiner should state a medical opinion as to: a) The likelihood (likely, unlikely, at least as likely as not) that any current bilateral hip disability is causally or etiologically related to his symptomatology in military service as opposed to its being more likely due to some other factor or factors. Specifically, the examiner should address the relationship between the documented motor vehicle accident in 1989, his reported falls from a hammock, and/or the documented fall from a cliff in 1990 while performing land navigation tasks. For purposes of this examination, the examiner should accept as credible the Veteran's statements regarding the incurrence of a bilateral hip injury with associated pain in service, and his reports of continuity of pain in the years following his separation from service. b) The likelihood (likely, unlikely, at least as likely as not) that the bilateral hip disorder was caused by his service-connected disabilities of the lumbar spine, right lower extremity radiculopathy, cervical spine, and/or bilateral feet. c) The likelihood (likely, unlikely, at least as likely as not) that the bilateral hip disorder was aggravated by (permanently worsened as a result of) his service-connected disabilities of the lumbar spine, right lower extremity radiculopathy, cervical spine, and/or bilateral feet. A clear rationale for all opinions must be provided as well as a discussion of the facts and medical principles involved when reaching such conclusions. 6. When the development requested has been completed, the case should be reviewed by the AMC/RO on the basis of additional evidence. Additionally, the claim for a TDIU prior to October 1, 2009 should be adjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These claims 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). _________________________________________________ LAURA H. ESKENAZI 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).