Citation Nr: 1338415 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-14 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected herniated nucleus pulposus of the cervical spine, status post discectomy and fusion. 2. Entitlement to a disability rating in excess of 10 percent for paresthesias of the left hand associated with the service-connected herniated nucleus pulposus of the cervical spine, status post discectomy and fusion. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active service from September 1979 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), which, in pertinent part, increased the disability rating for the Veteran's cervical spine disability from 10 percent to 20 percent, effective January 27, 2009, and denied entitlement to a TDIU. The Board has assumed jurisdiction over the issue of a disability rating in excess of 10 percent for paresthesias of the left hand in light of the regulations regarding the rating of cervical spine disabilities, which include evaluation of any associated neurological disabilities. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2013). The Board has also assumed jurisdiction over the claim for entitlement to a TDIU as such is part and parcel of a claim for an increased disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). The Board notes that the Veteran's last VA examination for her cervical spine disability was in April 2009. In subsequent statements, she has indicated that she continues to have numbness in her right arm and wrist, and that she also has developed radiating pain from her neck into her right hip and thigh; she also has reported urinary and bladder problems which she associates with her cervical spine disability. In light of the Veteran's statements and the length of time since her last VA examination, the Board finds that a remand is necessary in this case in order to obtain a VA examination of her cervical spine disability such that the current nature and severity of that disability may be properly assessed. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a Veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Board notes that evaluation of the Veteran's left hand disability as well as her claim for TDIU are intertwined with the cervical spine claim being remanded; accordingly, those claims are also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall obtain any relevant VA treatment records from the Nashville VA Medical Center, or any other VA medical facility that may have treated the Veteran, since July 2010 and associate those documents with the claims file. 2. The RO/AMC shall ask the Veteran to identify any private treatment that she may have had for her asserted disabilities, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that she can make an attempt to obtain those records on her own behalf. The Veteran should additionally provide any information, including names of doctors, who have prescribed bedrest for her cervical spine disorder such that documentary evidence of such prescription may be verified; or, she should be asked to provide documentary evidence of, including written prescription, physician-prescribed bedrest. 3. The RO/AMC shall schedule the Veteran for a VA examination in order to determine the current nature and severity of her cervical spine disability, to include the associated left hand paresthesia. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The VA examiner is directed to conduct range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must equate all functional losses, including those due to flare-ups to additional loss of motion (beyond what is shown clinically). The examiner is also directed to specifically comment on the following: (a) Whether the Veteran has muscle spasms or guarding severe enough to result in abnormal gait or spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's cervical spine. (c) Whether the Veteran experiences incapacitating episodes requiring physician-prescribed bed rest. The frequency and duration of such episodes should be noted. (d) The examiner must also identify all associated neurological abnormalities associated with the service-connected cervical spine disorder, to include any associated bladder or bowel impairment, and particularly the presence of upper extremity radiculopathy, to specifically include paresthesias of the left hand. It should also be specifically noted whether the cervical spine disability has caused lower extremity radiculopathy. Each nerve affected or seemingly affected should be identified and the impairment of each nerve caused by cervical spine disability should be described as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves or nerves seemingly affected. (e) The examiner should finally state whether the Veteran's cervical spine disability and any associated disabilities precludes her from obtaining and maintaining substantially gainful employment. The examiner must specifically discuss the Veteran's lay statements regarding the nature and severity of her symptomatology throughout the appeal period. All opinions must be accompanied by an explanation. If the examiner finds that any of the above questions cannot be answered without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims for increased disability rating of her cervical spine disability and left hand disabilities, as well as TDIU. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until she is so informed. She 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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. The 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).