Citation Nr: 1343374 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-13 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for lumbar strain, currently rated 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from August 1979 to March 1990. This appeal arises to the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in, Winston-Salem, North Carolina, that denied an increased rating for lumbar muscle strain. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran has claimed that her low back disability has precluded performing full-time work and she has submitted a private physician's written excusal from work for over a month due to back pain. Therefore, the record raises the question of unemployability due to a disability for which an increased rating is sought. The Board has added a TDIU claim to page 1 to reflect its jurisdiction over the matter. A July 25, 2011-dated VA neurology note and various other VA out-patient treatment reports mention that fibromyalgia symptoms date back to active service. These reports raise the issue of service connection for fibromyalgia, although the Veteran has not sought service connection for fibromyalgia. The Board does not have jurisdiction over this claim and may only refer it to VA's Appeals Management Center (hereinafter: AMC) for appropriate action. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND Lumbar Spine Rating Although VA examined the Veteran's low back disability in May 2009, since then the Veteran has claimed that her back disability is significantly worse than described by the May 2009 examiner. While the May 2009 examiner found no radiculopathy, in her March 2010 substantive appeal, the Veteran claimed pain, weakness, and numbness in both legs. She submitted a November 2011 private examination report that reflects limited range of motion of the thoracolumbar spine significantly worse than shown in the VA examination report. The May 2009 VA examiner also found that the Veteran's back pain, fatigue, weakness were "most likely coming from her fibromyalgia and MS with and not back strain." While some VA clinical records mention diagnoses of fibromyalgia and multiple sclerosis (MS), other VA clinical records suggest that MS has been ruled-out. Thus, whether current back pain may be attributed to service-connected disability is called into question and must be resolved prior to adjudication. Finally, the May 2009 VA compensation examiner mentioned that the Veteran was employed full time, whereas she has claimed that she can work no more than part time because of back pains. She has also claimed that her pain medications are disabling. These issues should also be addressed upon re-examination. In Caffrey v Brown, 6 Vet App 377, 381 (1994), the Court held that where evidence indicated a material change in the disability or indicated that the current rating may be incorrect, a fresh medical examination was required. On remand, the Veteran should be re-examined to determine the pain-free range of motion of the thoracolumbar spine, whether back pain must be attributed to fibromyalgia and MS, whether there is any additional functional loss due to weakness, fatigability, incoordination or pain on movement due to service-connected disability, and whether pain medications are causing secondary disability. TDIU Entitlement to TDIU has been raised by the record. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). The TDIU claim should be developed as appropriate. The AMC should send the Veteran and her representative a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. VA's duty to assist includes offering an examination to determine whether service-connected disabilities preclude earning an income that is above "marginal income." See Ferraro v. Derwinski, 1 Vet. App. 326, 333 (1991). Accordingly, this case is remanded to the AMC for the following action: 1. The Veteran has reported that on-going treatment is provided by VA. The AMC should ensure that the claims file and/or electronic file contains up-to-date VA treatment reports. It appears that all relevant treatment records mentioned by the Veteran during her March 2012 videoconference hearing have been obtained to the extent possible. 2. After the development requested above has been completed to the extent possible, the AMC should make arrangements for an appropriate examination of the thoracolumbar spine. The claims file and additional evidence contained in the electronic record should be made available to the physician for review. 3. The examining physician is asked to review the pertinent medical history and note that review in the report. The physician is asked to elicit a complete history of relevant symptoms from the Veteran, examine her spine, and then offer a diagnosis, if appropriate. The physician is asked to address the following: I. The pain-free range of motion of the thoracolumbar spine. II. Whether the service-connected lumbar spine disability is causing radiculopathy or other neurologic abnormality, including, but not limited to, bowel or bladder impairment. III. Whether any back pain is at least as likely as not (50 percent or greater possibility) caused by the service-connected disability, rather than by fibromyalgia and MS. This determination includes determining whether a diagnosis of MS is appropriate. IV. Whether there is additional functional impairment and/or an impact upon employment due to the service-connected lumbar spine disability. V. Whether the Veteran's low-back-pain medications cause additional disability. The physician should offer a rationale for any conclusion in a legible report. 4. After the development requested above has been completed to the extent possible, the RO should re-adjudicate the claim for an increased rating for the lumbar spine disability. 5. The AMC should then develop the TDIU claim. This includes considering any pending service connection claim (such as for fibromyalgia) and offering an appropriate examination to determine whether it is at least as likely as not (50 percent or greater possibility) that all service-connected disabilities preclude securing and following a substantially gainful occupation. Following development and adjudication of the TDIU claim, if the benefit is not granted, the AMC should submit it to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b) and § 3.321 (b). 6. After the development requested above has been completed to the extent possible, if the benefits sought remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).