Citation Nr: 1337783 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-13 030 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to increased disability ratings for service-connected cervical stenosis and spondylosis, status-post C3 to C6 discectomy and fusion-currently evaluated as 30 percent disabling for limitation of motion of cervical spine, and as 10 percent disabling for scar of the right anterior neck. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to September 1984, and from July 2004 to October 2005. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision of the RO that, in pertinent part, denied a disability rating in excess of 30 percent for service-connected cervical stenosis and spondylosis, status-post C3 to C6 discectomy and fusion. The Veteran timely appealed. In May 2009, the Veteran testified during a hearing before the undersigned at the RO. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In August 2009, the Board remanded the matter for additional development. In August 2010, the AMC assigned a separate 10 percent disability evaluation for scar of the right anterior neck, effective November 3, 2009; and informed the Veteran that this matter was ancillary to and intertwined with the matter on appeal. Because increased evaluations are available for the service-connected disability, and the Veteran is presumed to seek the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran continues to work. The Veteran has not alleged that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issue of service connection for carpal tunnel syndrome has been raised by the record (September 2013 Appellate Brief Presentation), 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. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND Records Records in the claims folder show that the Veteran's claim for Social Security benefits based upon disability was denied. While the RO previously requested the records and SSA responded that they could not be located it is unclear whether it is reasonably certain they do not exist or that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(e). Increased Rating The Board notes that the Veteran underwent a C3-to-C6 anterior cervical diskectomy and fusion in June 2007. He reported having some right upper extremity weakness and some neck pain, with decreased mobility, in August 2007. The Veteran reported persisting posterior neck pain and right arm weakness and numbness in July 2008; and sharp pains in the back of neck, and on the right side in September 2008. The report of a November 2009 VA examination reflects complaints of pain all day; and a diagnosis of cervical fusion with foraminal narrowing, and right upper extremity radiculopathy. During an October 2010 VA peripheral nerves examination, the Veteran reported that tingling and numbness in his right arm "never went away" after the surgical fusion. The examiner also indicated that electromyograph studies performed in October 2010 revealed right carpal tunnel syndrome and no other findings. Hence, the examiner associated the Veteran's complaints of numbness in the arm to carpal tunnel syndrome. In September 2013, the Veteran's representative contended that the October 2010 VA examination was inadequate for rating purposes because it failed to address any radiculopathy attributed to the Veteran's painful motion of the cervical spine, and the level of impairment with respect to the right upper extremity. On remand, the examiner should address whether the range of motion of the Veteran's cervical spine on flexion is equivalent to ankylosis, favorable or unfavorable. In addition, the examiner should determine the severity of any numbness and weakness of the right upper extremity, to the extent possible, that is attributable to the service-connected cervical stenosis and spondylosis, status-post C3 to C6 discectomy and fusion. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to obtain copies, from the Social Security Administration, of any determination regarding disability benefits to the Veteran and the medical records used as a basis of an award or denial. 2. Obtain recent VA treatment records for cervical stenosis and spondylosis, status-post C3 to C6 discectomy and fusion, that have yet to be associated with the Veteran's claims file (physical or electronic)-including a copy of the July 5, 2012 electromyograph report and addendum, and associate it with the Veteran's claims file (physical or electronic). Please note that July 2012 neurology EMG report entries indicate that the July 5, 2012 report and addendum are in VistA Imaging. If the results cannot be accessed through VistA Imaging, contact the VA facility directly in order to obtain a copy of the report and addendum. 3. Thereafter, afford the Veteran a VA examination, for evaluation of the service-connected cervical stenosis and spondylosis, status-post C3 to C6 discectomy and fusion. The entire claims file must be made available to the examiner(s), and the report of the examination(s) should note review of the file. The examiner should identify all objective neurological abnormalities associated with the Veteran's cervical stenosis and spondylosis, status-post C3 to C6 discectomy and fusion. The examiner's attention, in this regard, is directed to the November 2009 VA report showing a diagnosis of right upper extremity radiculopathy, the October 2010 report diagnosing carpal tunnel syndrome, and the April 2013 diagnosis of radiculopathy. The examiner should specifically report the ranges of motion of the cervical spine, or whether any segment of the spine is ankylosed. If ankylosed, the examiner should report whether the spine is held in flexion or extension with any of the following: difficulty walking because of a limited line of vision, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial subluxation, or neurologic symptoms due to nerve stretching. In this regard, the examiner's attention is directed to the May 2009 hearing testimony. The Veteran testified that he had problems with the plate in front of his neck, which somehow shifted because of his breathing and made him gasp for air. He testified that he had to push the plate back into place, and start breathing; and that this happened about two or three times a week. He testified that it felt like he was choking. The Veteran testified that he could not turn his head all the way down, and that he had difficulty on steps, particularly the first one, and had to hold onto something. He did not drive much because he could not see the speedometer in front of him, and had to be careful when walking. The examiner should comment upon the existence, and frequency, of any incapacitating episodes (i.e., a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician); specifically, whether, over the last 12-month period, the Veteran's incapacitating episodes had a total duration of (a) at least two weeks but less than four weeks; (b) at least four weeks but less than six weeks; or (c) at least six weeks. The examiner should also provide information concerning the service-connected scar of the right anterior neck, including whether such is unstable and whether there is any other impairment resulting therefrom. 4. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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. 2013). _________________________________________________ S. S. TOTH 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).