Citation Nr: 1336661 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-33 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for low back strain with degenerative joint disease of the lumbar spine. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from January 1961 to January 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant has asserted that he is entitled to an evaluation in excess of 20 percent for service-connected low back strain with degenerative joint disease of the lumbar spine. A July 2007 private treatment record notes that the appellant had significant numbness and paresthesias of the right lower extremity and anterior thigh. A July 2008 private treatment record reflects that the appellant had mild paresthesias in the anterior right thigh. At an October 2008 VA examination, the appellant reported having leg pain and tingling in his skin due to his spine condition. The October 2008 VA examination report indicates that motor and sensory function of the right and left lower and upper extremities were within normal limits. At a March 2010 VA examination, a reflex exam indicated the appellant's knee jerk was absent and ankle jerk was hypoactive. The VA examiner did not indicate whether or not the findings of absent knee jerk and hypoactive ankle jerk were causally attributable to the appellant's service-connected low back strain. Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code. As the appellant reported having symptoms of paresthesias during the period on appeal and the March 2010 VA examiner did not address the findings of absent knee jerk and hypoactive ankle jerk, the Board finds that the March 2010 VA examination is inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It is not clear from the evidence of record whether the appellant has objective neurologic abnormalities warranting a separate evaluation. Accordingly, the claim must be remanded for a new VA examination to determine whether the appellant has any neurologic abnormalities related to his service-connected low back strain. TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the issue of entitlement to a TDIU has been raised by the record. In a July 2010 statement, the appellant stated that: "I had to quit work as a school teacher and part time school administrator. I have trouble walking . . . because of the pain in my back." The March 2010 VA examination report reflects that the appellant reported that he retired in 2007 because of his lumbar condition. As the appellant has asserted that he is unemployable due to his service-connected low back disability, the issue of entitlement to a TDIU has been raised by the record and must be adjudicated by the Agency of Original Jurisdiction. Accordingly, the case is REMANDED for the following action: 1. Send the appellant comprehensive notice regarding the issue of entitlement to a TDIU. 2. Then, schedule the appellant for VA examination to determine the current level of severity of his service-connected low back strain with scar. All indicated testing and studies should be performed including range of motion testing. The examination should include sensory and reflex testing. The VA examiner should also review the March 2010 VA examination which included findings of absent knee jerk and hypoactive ankle jerk bilaterally. The VA examiner should provide an opinion as to whether the appellant has any associated objective neurologic abnormalities that are at least as likely as not (at least a 50 percent probability) causally attributable to service-connected low back strain. The examiner should provide an opinion as to whether it is at least as likely as not (at least as 50 percent probability) that the appellant is unemployable as a result of his service-connected disabilities, including his low back disability. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 3. Thereafter, readjudicate the issues on appeal of entitlement to an evaluation in excess of 20 percent for low back strain with degenerative joint disease of the lumbar spine and entitlement to a TDIU. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MILO H. HAWLEY 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).