Citation Nr: 1339918 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-20 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for low back strain. 2. Entitlement to a disability rating in excess of 10 percent for cervical strain. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from February 1989 to March 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In his July 2012 substantive appeal (VA Form 9), the Veteran reiterated his unemployability, which was previously denied in the February 2012 rating decision. Although the Veteran did not appeal the issue, the Board finds that the record has raised a claim for TDIU as an included claim within the Veteran's currently pending increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, this issue has been added as an additional subject for current appellate consideration. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. 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 While the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, this claim, it is necessary to ensure the claim is fully developed and receives all due consideration. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). In a February 2011 statement, the Veteran requested that the VA obtain his records from the Social Security Administration. VA's duty to assist requires that it seek the SSA's disability determination and the medical records underlying it for Social Security disability payments only when those records are relevant to the claim. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Here, the Veteran claims the records are relevant, therefore they should be obtained on remand. In addition, in his December 2010 notice of disagreement and during his April 2011 VA examination, the Veteran mentioned receiving workers' compensation benefits. Therefore, these records should also be obtained on remand. All outstanding relevant treatment records should also be obtained, in particular records from the VA New Jersey Health Care System, as outlined below. Finally, as the case is being remanded for the foregoing reasons, the Veteran should be afforded a new VA examination that takes into consideration the additional evidence. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all documents or evidentiary material pertaining to the Veteran's receipt of SSA disability benefits. If these records are not available, a negative reply must be provided. 2. Make arrangements to obtain the Veteran's complete records, to include all medical records, related to his receipt of workers' compensation benefits. 3. Make arrangements to obtain the Veteran's VA treatment records, to include from the VA New Jersey Health Care System, dated since June 2012. 4. Thereafter, schedule the Veteran for a VA compensation exam for his low back strain and cervical strain. The claims file should be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be performed. The examiner is asked to make the following medical determinations: The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected low back strain and cervical strain. The examiner should identify any orthopedic and neurological findings related to the service-connected low back strain and cervical strain and fully describe the extent and severity of those symptoms. The examiner should conduct range of motion testing of the lumbar and cervical spine. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the lumbar and/or cervical spine is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. With regard to any neurological disability resulting from the service-connected low back strain and/or cervical strain, the specific nerve(s) affected should be specified, together with the degree of paralysis caused by service-connected disability and the associated symptoms. The examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had incapacitating episodes,' defined as 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.' The examiner should provide an opinion with respect to whether the Veteran's service-connected low back strain and, cervical strain, PTSD, and lipoma of the left posterior cervical spine, in the aggregate, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions request, it must be returned to the providing examiner for corrective action. 6. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an SSOC and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant 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). _________________________________________________ P. M. DILORENZO 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).