Citation Nr: 1342050 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-15 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for degenerative joint disease (DJD) of the cervical spine. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran had active service from September 1965 to August 1969. This matter arises before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Preliminarily, the Board finds that it has jurisdiction over the issue of entitlement to a TDIU, and that that issue is on appeal. Once a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the issue of entitlement to TDIU is raised. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). When TDIU based on a disability is raised in connection with an increased rating claim for that disability, the Board has jurisdiction over the issue of TDIU because it is part of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009); VAOPGCPREC 6-96 (August 16, 1996). Here, in a March 2008 VA examination, the Veteran reported early retirement due back pain. The April 2012 VA examiner noted the Veteran's cervical spine condition did not affect his ability to work, yet did not provide any explanation. The Veteran has requested entitlement to an extra-schedular TDIU. Accordingly, the issue of entitlement to TDIU has been raised by the record and the Board has determined that it has jurisdiction over the issue as it is part and parcel of the increased rating claim. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks an initial disability rating higher than 20 percent for his service-connected DJD of the cervical spine. Additional evidentiary development is necessary in order to address the merits of this matter. First, a new examination is warranted. The Veteran has complained of radiating pain that worsens when he bends his neck forward. See August 2009 Dr. B.B. statement. In an April 2012 VA spine examination, there was decreased sensation of the upper extremities, but the examiner indicated that the Veteran did not have any radicular pain. A 2011 VA record noted a lot of canal narrowing at C3-C4. Further, the Veteran, through his representative, has requested that the VA consider the radiating pain under a separate rating schedule. A remand is necessary to evaluate whether a separate rating for related neurological impairment is warranted. See 38 C.F.R. § 4.71(a), Diagnostic Code 5242, Note (1). Second, development of the TDIU claim must be undertaken. The Veteran must be provided notice of the requirements for schedular and extra-schedular TDIU. Additionally, an opinion must be obtained to address the Veteran's unemployability. Finally, as the case is being remanded for an additional VA examination, outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a VCAA letter on the issue of entitlement to a TDIU. 2. Obtain copies of all outstanding VA treatment records dated since March 2012 and associate them with the claims file. 3. After all records have been received and associated with the claims file, afford the Veteran a new VA examination to determine the severity of the service-connected cervical spine disorder. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must specifically address whether there is any objective neurological component to the service-connected disability, to include conducting any neurological testing deemed appropriate. The examiner must comment on the Veteran's statements of radiating pain, as well as any other relevant lay and medical opinions of record, including the 2012 findings of decreased upper extremity sensation. The examiner should also express an opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities (i.e., cervical spine disability and bilateral hearing loss) render him unable to secure or follow a substantially gainful occupation. If the examiner opines that the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type(s) of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examiner must comment on the Veteran's statement of an early retirement due to back pain, as well as any other lay statements in the record. 4. Readjudicate the issues on appeal, to include an express consideration of whether referral for a schedular or extraschedular TDIU should be conducted. If the benefits sought remain denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. 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). _________________________________________________ K. MILLIKAN 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).