Citation Nr: 1341635 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 06-32 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and M.E. ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1962 to February 1975. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 2010, the Veteran testified during a Travel Board hearing before a Veterans Law Judge (VLJ). A transcript from that proceeding is of record. The VLJ who conducted the hearing is no longer with the Board. The Veteran was notified of that fact in a May 2013 letter, which offered him an opportunity to request an additional hearing, but he did not respond with 30 days of the notice letter as requested. Thus, the Board may continue with adjudication of the claims. These claims were remanded by the Board for additional development in November 2010 and October 2012. The case is now again before the Board for further appellate consideration. 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 The Board most recently remanded the claims remaining on appeal in October 2012 for additional development, to include obtainment of an additional VA examination to determine whether the Veteran's currently diagnosed bladder/urinary dysfunction may be related to his service-connected lumbar spine disability. A VA spine examination was performed in September 2013. The examiner opined that the Veteran's lumbar degenerative disc condition has no relationship to the etiology of his bladder dysfunction. He cited medical literature containing a number of risk factors for urinary incontinence and stated that the Veteran's non-insulin dependent diabetes, diagnosed in 2002, is a strong risk factor in the development of urinary incontinence. The examiner did not, however, provide a rationale as to why in this specific case, this Veteran's urinary/bladder dysfunction is related to his diabetes as opposed to his service-connected lumbar spine disability. Moreover, VA treatment records show that the Veteran's diabetes is secondary to steroid use (see November 2011 endocrinology note). A March 2011 VA primary care note shows that steroids were prescribed to reduce inflammation and edema related to the Veteran's service-connected spine and knee disabilities. The examiner also failed to provide an opinion as to whether the Veteran's urinary/bladder dysfunction is at least as likely as not aggravated by his service-connected lumbar spine disability. The examiner noted radiographic findings pertaining to the Veteran's lumbar spine, but he did not state the significance, if any, of those findings. The examiner also found that the Veteran does not have any other neurological abnormalities or findings such as bowel or bladder problems/pathologic reflexes related to his lumbar spine condition. The examiner did not, however, acknowledge or discuss an August 2009 emergency treatment with diagnostic assessment of "possible sciatica," September 2009 lumbosacral MRI findings that "far right lateral disc bulging at L4-5 contacts and displaces the exiting right L4 root distally beyond the foramen, possibly accounting for right lower extremity radiculopathy," or a "new complaint" of intermittent radicular pain to the right lower extremity in March 2011. A November 2, 2009, VA treatment note states that EMG testing was performed on that date to rule out radiculopathy of the right lower extremity; however, the EMG report is not currently associated with the claims file for review. In light of the numerous inadequacies of the September 2013 VA examination and opinion, the Board finds that the Veteran should be afforded a VA examination to indentify any neurological manifestations associated with the Veteran's service-connected lumbar spine disability, to specifically include radiculopathy of the right lower extremity and urinary/bladder dysfunction. The claim of entitlement to TDIU is inextricably intertwined with the claim for a higher evaluation for the Veteran's lumbar spine disability and must be deferred pending readjudication of that claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file a copy of the November 2009 EMG test of the right lower extremity and any ongoing VA treatment records from the West LA and Sepulveda VA Medical Centers dating since April 2012. All efforts to obtain this additional evidence, including positive and negative responses, must be documented in the claims folder. 2. Then, schedule the Veteran for a VA spine examination to identify any neurological manifestations associated with his service-connected lumbar spine disability, to include radiculopathy of the right lower extremity and urinary/bladder dysfunction. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records were reviewed. All necessary tests and studies should be conducted, to include EMG/NCV testing. In accordance with the latest worksheets for rating spinal disabilities, lower extremity radiculopathy, and urinary/bladder dysfunction, the examiner is to provide a detailed review of the Veteran's pertinent medical history dating since August 2003, current complaints and the nature and extent of any neurological residuals of the Veteran's lumbar spine disability. For any currently manifested neurological disorder, to include right lower extremity radiculopathy and urinary/bladder dysfunction, the examiner is to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability is caused by or aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected lumbar spine disability. Regarding employability, the examiner must address the impact that the Veteran's lumbar spine disability and any associated neurological disabilities found on examination, have on his ability to obtain and retain substantially gainful employment. Any pathology found due to disorders other than these must be differentiated. If symptoms of different disorders cannot disassociated, the examiner must explain why. The examiner should reconcile any opinion with the evidence of record, and cite to the record as appropriate. He or she should set forth all examination findings, along with a complete rationale for the conclusions reached, in a printed report. 3. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented their consideration of Virtual VA. If the report is deficient in any manner, corrective procedures must be implemented at once. 4. After the completion of any action deemed appropriate in addition to that requested above, readjudicate the claims with consideration as to whether separate ratings are in order for neurological residuals and/or bladder impairment of the Veteran's lumbar spine disability. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given the opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ A. C. MACKENZIE 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. 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).