Citation Nr: 1336767 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 09-46 653 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 40 percent for lumbosacral strain with sacroilitis of both sacroiliac joints. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from December 1977 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The previously established 40 percent rating for lumbosacral strain with sacroilitis of both sacroiliac joints was continued therein. A TDIU also was denied. Following issuance of the rating decision, jurisdiction was transferred to the Veteran's home RO in Pittsburgh, Pennsylvania. He appealed each of the determinations made in it. Based on review of the Veteran's paper claims file and Virtual VA electronic claims file, this matter is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). REMAND Although the Board regrets the delay entailed by a remand, adjudication of this matter cannot be undertaken at this time. Additional development is needed to ensure that the Veteran is afforded every possible consideration. VA indeed has a duty to assist him in substantiating the benefits claimed. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). I. Records This duty requires that VA make reasonable efforts to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2013). Reasonable efforts with respect to records in government custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013). When the existence of records that are not in the government custody is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2013). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2013). The claimant shall be notified if requested records cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). VA has obtained the Veteran's VA treatment records dated into November 2009. They document his ongoing care to include for his back. Accordingly, it is inferred that there may be pertinent VA treatment records dated from November 2009 to present. The Veteran indeed has submitted a December 2009 VA magnetic resonance imaging scan. Updated VA treatment records have not been requested by VA. A request or requests for them must be made, all the more so since VA has constructive notice of them. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative must be notified if the request or requests are unsuccessful. Additionally, VA has obtained the Veteran's treatment records from R.G., a doctor of osteopathic medicine, dated into December 2007. They document care ongoing care to include for his back. The Veteran indicated in his August 2008 notice of disagreement (NOD) that he had not seen R.G. in a while. In January 2009, however, he submitted a December 2008 treatment record from Dr. R.G. It reveals that he is to be seen once per year. Therefore, it is inferred that there may be pertinent treatment records from R.G. dated between December 2008 and the present. The Veteran further indicated in a December 2009 statement that Dr. C., his family physician, saw him in 2006. Whether or not Dr. C. has provided back care is unclear. VA must ask the Veteran to provide clarification in this regard. VA then must ask him either to submit updated treatment records from R.G., treatment records from Dr. C. if he confirms that they relate to his back, and treatment records regarding back care from any other private source or to provide enough information to identify and locate them along with an authorization for their release to VA. If he provides the information and authorization, an initial request for the records must be made. Follow-up requests as well as notification to him and his representative if they are unsuccessful also must be made as necessary. II. Medical Examination VA's duty to assist includes a mandate that any VA medical examination obtained be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Hayes v. Brown, 9 Vet. App. 67 (1996). A VA medical examination is adequate when it allows the Board to undertake a fully informed adjudication. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, it must be contemporaneous. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517 (1995); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Olson v, Principi, 3 Vet. App. 480 (1992); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran underwent a VA medical examination for his lumbosacral strain with sacroilitis of both sacroiliac joints in November 2007. There are indications that it may not have accurately depicted this disability. In his August 2008 NOD, the Veteran pointed out inconsistencies between the examination and his observations. The examination noted his baseline level of pain is a two or three on a scale of one to 10, that he has no weakness, and that his posture and gait are normal. Yet, the Veteran observes that his baseline level of pain is a three to five, that he has weakness radiating from his lower back, and that his posture and gait are far from normal. While the examination included thoracolumbar flexion and extension ranges of motion, 2006 and 2007 private treatment records from R.G. reveal an inability to extend the lumbar spine and most back flexion and extension coming from the hips. R.G.'s December 2008 treatment record further notes a disagreement with VA's examination of the Veteran and the belief that it may have yielded "faulty measurements." There additionally are indications that the Veteran's examination no longer accurately depicts his disability even if it did so initially. In other words, it is no longer contemporaneous. It was conducted almost six years ago and accordingly is of considerable age. R.G. opined in the December 2008 treatment record that the Veteran's disability merits at least a 50 percent rating from VA. The Veteran finally referenced deterioration in a December 2009 statement. For these reasons, adjudication undertaken by the Board on the basis of the examination would not be fully informed. Arrangements therefore must be made for another VA medical examination. III. Inextricably Intertwined Of note are statements from the Veteran and his representative conveying the belief that ankylosing spondylitis is encompassed by his lumbosacral strain with sacroilitis of both sacroiliac joints. The Board disagrees. Both ankylosing spondylitis and lumbosacral strain with sacroilitis of both sacroiliac joints affect the Veteran's back, but they are distinct conditions. An Internet article submitted by his representative attached to an October 2013 Brief indeed sets forth that ankylosing spondylitis can also affect body parts other than the back. Lumbosacral strain with sacroilitis of both sacroiliac joints, as the name implies, only affects the back. Service connection is in effect only for lumbosacral strain with sacroilitis of both sacroiliac joints. Service connection for two distinct conditions affecting the same body part or system is permissible. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). Therefore, the Veteran's statements and those of his representative are construed as raising the issue of entitlement to service connection for ankylosing spondylitis including as secondary to service-connected lumbosacral strain with sacroilitis of both sacroiliac joints. This issue has not been adjudicated by the RO yet. Issues are considered inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another issue. Harris v. Derwinski, 1 Vet. App. 180 (1991). The appropriate remedy is to defer adjudication of the impacted issue until the issue that may cause the impact has been adjudicated. Id. Here, the TDIU issue is inextricably intertwined with the issue of entitlement to an increased rating for lumbosacral strain with sacroilitis of both sacroiliac joints. It also is inextricably intertwined with the referred issue of entitlement to service connection for ankylosing spondylitis, to include as secondary to service-connected lumbosacral strain with sacroilitis of both sacroiliac joints. Indeed, determining whether a TDIU is warranted is based partially on whether the Veteran has a service-connected disability rated at 60 percent or more or service-connected disabilities rated at 70 percent or more with one rated at at least 40 percent. 38 C.F.R. § 4.16(a) (2013). The aforementioned increased rating issue and service connection thus must be adjudicated, following completion of all development necessary to do so, with adjudication of the TDIU issue deferred until thereafter. Accordingly, this matter is REMANDED for the following (expedited handling is requested since it has been advanced on the Board's docket): 1. Make as many requests as necessary to obtain updated VA treatment records regarding the Veteran dated from November 2009 to present. Associate all records received with the paper or electronic claims file. 2. Also ask the Veteran to clarify whether or not Dr. C. has provided care for his back. If so, ask him either to submit treatment records from Dr. C. or to provide enough information to identify and locate them along with an authorization for their release to VA. Ask him the same regarding updated treatment records dated between December 2008 and the present from R.G. as well as treatment records regarding back care from any private source other than R.G. and Dr. C. If the Veteran provides information and authorization, make an initial request for the applicable records with a follow-up request or requests as necessary. Associate all records received with the paper or electronic claims file. 3. If requested treatment records, whether VA or private, ultimately are not received or are received but are incomplete, next notify the Veteran and his representative pursuant to established procedure. Document the paper or electronic claims file claims as appropriate in this regard. 4. After completion of the above, arrange for the Veteran to undergo an appropriate VA examination regarding his lumbosacral strain with sacroilitis of both sacroiliac joints. The examiner shall review the paper and electronic claims files, documenting such in a report to be placed in one of these files. The examiner also shall document in the report an interview of the Veteran regarding his pertinent history, current symptoms, treatment for them, and their impact on his activities of daily living and employment. Information regarding the onset, frequency, duration, and severity of relevant symptoms, as well as flare-ups of such symptoms, shall be obtained. All tests and studies deemed necessary next shall be performed, the results of which shall be included in the report. This shall include: (a) initial and repeated range of motion of the thoracolumbar spine and the cervical spine. (b) any objective evidence of pain during motion. The impact of pain, weakness, excess fatigability, and/or incoordination on motion shall be expressed in terms of the degree of range of motion lost. Their impact on motion during flare-ups, if flare-ups are reported, also shall be expressed to the extent possible in terms of the additional degree of range of motion lost. (c) evaluation of favorable or unfavorable spine ankylosis. [Fixation of a spinal segment in neutral position (zero degrees) is favorable ankylosis. Fixation in flexion or extension resulting in difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin of the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching is unfavorable ankylosis.] and (d) a neurologic evaluation. [The examiner shall opine as to whether there are any objective neurologic abnormalities associated with the Veteran's lumbosacral strain with sacroilitis of both sacroiliac joints other than erectile dysfunction (which already is service-connected as a secondary condition).] The examiner shall opine as to whether or not it is possible to distinguish the symptoms and findings of the Veteran's lumbosacral strain with sacroilitis of both sacroiliac joints from those of his ankylosing spondylitis. If so, the symptoms and findings of each shall be set forth identified. A clear and complete rationale (explanation) for each opinion shall be provided by the examiner in the report. 5. Then readjudicate the Veteran's entitlement to a rating in excess of 40 percent for lumbosacral strain with sacroilitis of both sacroiliac joints. If the determination is favorable to him in full or in part, furnish him and his representative with a rating decision. If the determination is not fully favorable to him, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. Place a copy of the rating decision and/or SSOC in the paper or electronic claims file. 6. Next, readjudicate the claim for a TDIU once his claim for service connection for ankylosing spondylitis, to include as secondary to service-connected lumbosacral strain with sacroilitis of both sacroiliac joints, has been adjudicated. [The issue of entitlement to service connection for ankylosing spondylitis, to include as secondary to service-connected lumbosacral strain with sacroilitis of both sacroiliac joints, should only be returned to the Board if the claim is denied and the Veteran perfects a timely appeal after notification of the denial.] If the determination as to the TDIU claim is favorable to the Veteran, furnish him and his representative with a rating decision. If the determination is not favorable to him, furnish him and his representative with a SSOC and allow them the requisite time period to respond. Place a copy of the rating decision and/or SSOC in the paper or electronic claims file. 7. Lastly, process all issues addressed in a SSOC for return to the Board. No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that he is obligated to cooperate with VA in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to report for a scheduled VA medical examination, for example, may result in denial of the benefit(s) sought. 38 C.F.R. § 3.655 (2013). The Veteran also is advised that he has the right to submit additional evidence and argument regarding this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. That it has been advanced on the Board's docket is reiterated. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). Further, all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). This remand is in the nature of a preliminary order and does not constitute a decision by the Board. 38 C.F.R. § 20.1100(b) (2013).