Citation Nr: 1337669 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-35 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from December 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). The Veteran and his wife testified at a personal hearing before the undersigned in May 2013, and a transcript of the hearing is of record. The issues on appeal are remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. The issue of service connection for residuals of a head injury was raised at the Veteran's May 2013 hearing but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. REMAND The Veteran's service treatment records reveal a motor vehicle accident in October 1970 with subsequent complaints that the accident included injury to the low back. Findings on a July 1971 physical examination report include multiple lumbar root injuries, mostly plantar flexors. According to a March 1997 Spine Association of Columbus treatment report, the Veteran had incurred work injuries from 1981 to 1985 to the neck and low back. VA X-rays in January 2004 revealed probable early spondylolisthesis of L5-S1, and the pertinent diagnosis on VA general medical evaluation in December 2004 was arthritis and strain of the lumbosacral spine. However, there is no nexus opinion on whether the Veteran's post-service low back disability is causally related to service. Consequently, additional development is needed prior to final adjudication of the service connection issue on appeal. TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a) (2013). The Veteran is service connected for post-traumatic osteoarthritis of the left shoulder, 20 percent disabling; for post-traumatic osteoarthritis of the left hip, 20 percent disabling; for bursitis of the right elbow, with X-ray evidence of degenerative joint disease, 10 percent disabling; for post-traumatic osteoarthritis of the left wrist, 10 percent disabling; for tinnitus, 10 percent disabling; and for left ear hearing loss, noncompensably disabling. His combined rating is 60 percent, with a bilateral factor of 3.5 percent for Diagnostic Codes 5207, 5215, and 5203. His combined rating for his musculoskeletal disabilities is 50 percent. Because he does not have a single disability rated at least 60 percent disabling and does not have a combined rating of 70 percent, the Veteran does not meet the schedular criteria for a total disability rating based on individual unemployability pursuant to 38 C.F.R. § 4.16(a), which means that a total rating can be considered only on an extraschedular basis under section 4.16(b). Although the Board may not assign an extraschedular rating in the first instance, because the authority for doing so is vested in a particular VA official, the Director of the Compensation and Pension Service, the Board may consider whether remand to the RO for referral to the proper official is warranted. See 38 C.F.R. § 4.16(b); Bagwell v. Brown, 9 Vet. App. 337 (1996) (holding that the Board is precluded from assigning an extra-schedular rating in the first instance, but the Board is not precluded from considering whether referral to the VA officials is warranted); see also VAOPGCPREC 6-96 (Aug. 16, 1996). It was noted on VA evaluation in March 2009 that the Veteran's service-connected musculoskeletal disabilities caused by his service motor vehicle accident rendered him unemployable because he is unable to tolerate prolonged even sedentary positions and is unable to sustain gainful unemployability or drive while under the influence of routine prescription muscle relaxers and analgesics. Consequently, the issue of entitlement to TDIU based on the provisions of 38 C.F.R. § 4.16(b) has been reasonably raised by the record but has not been considered by the appropriate VA official. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Therefore, the case is remanded for the following actions: 1. The AMC/RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, both VA and non-VA, to include any recent treatment reports. Based on his response, the AMC/RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the AMC/RO. If, after making reasonable efforts to obtain named records the AMC/RO is unable to secure same, the AMC/RO must notify the Veteran and (a) identify the specific records the AMC/RO is unable to obtain; (b) briefly explain the efforts that the AMC/RO made to obtain those records; (c) describe any further action to be taken by the AMC/RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the AMC/RO must arrange for examination by an appropriate health care provider to determine the etiology of any current low back disability. The claims files and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims files and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After a review of the evidence of record and examination of the Veteran, the examiner must provide an opinion on whether it is at least as likely as not (50 percent or more likely) that any low back disability found was incurred in or aggravated by service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The health care provider's opinion must include a discussion of the evidence of record and a complete explanation of the reasoning for the opinion. If the health care provider cannot provide the requested opinion without resorting to speculation, it must be so stated, and the health care provider must provide the reasons why an opinion would require speculation. The health care provider must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the health care provider 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 reviewer. The report prepared must be typed. 3. The AMC/RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. 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 the aforementioned 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. 4. Thereafter, the AMC/RO must readjudicate the issue of entitlement to service connection for a low back disability based on all of the evidence of record. 5. Additionally, if the above service-connection claim is not granted, or if it is granted but the rating assigned for the low back disability does not fulfill the rating criteria under a combined rating under 38 C.F.R. § 4.16(a), the Veteran's claim for a TDIU will be referred to the Chief Benefits Director of VA's Compensation and Pension Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b), to include with consideration of the opinion of the VA health care provider in March 2009. 6. If either issue on appeal remains adverse to the Veteran, the Veteran and his representative will be provided a Supplemental Statement of the Case, which will include a summary of all pertinent evidence and legal authority, as well as the reasons for the decision. The Veteran and his representative will be afforded a reasonable period in which to respond, and the record will then be returned to the Board for further appellate review, as appropriate. 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). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).