Citation Nr: 1335794 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-36 389 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating higher than 40 percent for residuals of a compression fracture T-6-10 with deformity, lumbar spinal stenosis, with lumbar traumatic degenerative changes. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD), and if so, entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. REPRESENTATION Veteran represented by: Joshua Stone WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from March 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from August 2008 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a hearing before the Board. The requested hearing was conducted in June 2013 by the undersigned Veterans Law Judge, regarding only the issue of entitlement to an increased rating for his lumbar spine disability. A transcript is associated with the claims file. The Board notes that in Rice v. Shinseki the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the RO denied entitlement to TDIU in an August 2008 rating decision and the Veteran did not appeal that decision. Accordingly, the Board finds that Rice is not applicable in this case. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to a rating higher than 40 percent for residuals of a compression fracture T-6-10 with deformity, lumbar spinal stenosis, with lumbar traumatic degenerative changes. The Veteran testified in a June 2013 Board hearing that his lumbar spine disability has become worse since his last VA examination. See June 2013 Hearing Transcript, page 3. The United States Court of Appeals for Veterans Claims (Court) has held that when a Veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Board notes that the most recent VA examination for the Veteran's lumbar spine disability was conducted in June 2008, more than five years ago. The Board finds a remand is necessary in order to determine the current level of severity of the Veteran's lumbar spine disability. Furthermore, the Board notes that the Veteran indicated he experiences numbness and tingling in his arms and legs and often falls. See June 2013 Hearing Transcript, pages 9, 10. The Veteran should be afforded a VA examination for these symptoms and the RO should give consideration to the possibility that the Veteran's radiculopathy warrants a separate rating. Additionally, the Veteran has indicated that he receives Social Security disability. See March 2013 letter. While Social Security records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of Social Security records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the RO should obtain and associate with the claims file a copy of Social Security's determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Finally, while the appeal for entitlement to an increased rating for his lumbar spine disability was pending, the Veteran completed a substantive appeal for the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for PTSD, and if so, entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. The Veteran asserted in his VA Form 9, received in November 2012, that he wants a Travel Board hearing at his regional office for this issue. Under 38 C.F.R. § 20.703, a Veteran can request a hearing before the Board of Veterans' Appeals at a Department of Veterans Affairs field facility when submitting the substantive appeal (VA Form 9) or anytime thereafter. Because such hearings for the Board are scheduled by the RO, a remand of this matter is required in this case. See 38 C.F.R. § 20.704 (2013). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any updated VA or private treatment records. 2. Request the Social Security Administration to furnish a copy of their decision, as well as copies of all medical records underlying that determination. If no further records are available, properly document a negative response in the file. 3. Schedule the Veteran for VA orthopedic and neurologic examinations to determine the nature and severity of his lumbar spine disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. a) The examiner should identify and completely describe all current symptomatology, including any neurological symptoms. b) The examination report must include ranges of motion of the lumbar spine, with notations as to the degree of motion at which the Veteran experiences pain. c) The examiner should indicate which, if any, nerves are affected and should indicate the severity of each nerve affected (mild, moderate, or severe). d) The examiner should state whether the Veteran's lumbar spine disability results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months should be reported. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. 4. The RO should take appropriate steps to schedule the Veteran for a hearing at the RO via videoconference before a Veterans Law Judge at the earliest opportunity, following the usual procedures as set forth in 38 U.S.C.A. § 7107 (West 2002 & Supp. 2007) and 38 C.F.R. § 20.704 (2008), for the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for PTSD, and if so, entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. After the hearing is conducted, or in the event the Veteran withdraws his request for hearing, or fails to appear at the scheduled hearing, this issue should be returned to the Board. 5. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. 6. After all of the above actions have been completed and the Veteran has been given adequate time to respond, readjudicate his claim for an increased rating for his lumbar spine disability. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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) (2013).