Citation Nr: 1503032 Decision Date: 01/22/15 Archive Date: 01/27/15 DOCKET NO. 12-29 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease (DDD) of the lumbar spine evaluated as 10 percent disabling prior to June 8, 2011 and 20 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his Spouse ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to February 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2009 and November 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In September 2013, the Veteran testified at a travel board hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Board notes that on the Veteran's October 2012 VA Form 9, he specifically restricted his appeal to the issues of entitlement to service connection for DDD of the lumbar spine and entitlement to service connection for TDIU. Thus, the issues of entitlement to service connection for bilateral peripheral neuropathy, to include as due to herbicide exposure, and service connection for migraines are not on appeal before the Board. The issue of entitlement to service connection for an acquired psychiatric disorder, to include depression, has been raised by the record in the Veteran's September 2013 hearing testimony, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the Appellant if further action is required. REMAND In a November 2011 Compensation and Pension (C&P) Back Examination, the Veteran was diagnosed with intervertebral disc degeneration (IVDD), facet degenerative joint disease, and a compression fracture at T-11. The VA examiner noted that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. The examiner also noted that the Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. In a May 2013 letter, K. K. S., D.C., the Veteran's private physician, wrote that the Veteran stated that he had pain, fatigue, daily stiffness, that he had occasional weakness in his legs, and numbness and tingling in his hips and down both legs. The Veteran's private physician diagnosed him with lumbar and thoracolumbar subluxations and moderate to severe degenerative joint and disc disease with radiculopathy into his hips, legs, knees, and ankles. This diagnosis conflicts with the November 2011 C&P Back examination which found that the Veteran did not have radicular pain or any other symptoms due to radiculopathy. In a September 2013 travel board hearing, the Veteran's representative stated that the Veteran should have been looked at under the formula for rating IVDS based on incapacitation episodes. The Veteran's spouse testified that the Veteran spent an enormous amount of time either on the couch, in bed, or in his chair. She testified that as a result of his back pain he cannot go shopping, do any gardening, or any of the other normal chores around the house. The Veteran testified that nearly every day his "severe" back pain limited his normal functions of daily living. The Veteran testified that his back symptoms had worsened since his November 2011 C&P examination, that he had pain that radiated down to his hips and legs, that his doctor had told him to stay off his feet, and that he had been prescribed a VA-provided back brace. Additionally, the Veteran testified that the last time he worked full time was five or six years ago and that it was his back that caused him to leave his job. The Veteran testified that he worked as a pipe fitter doing plumbing work and could not do his job properly anymore and his company fired him. A remand is necessary to afford the Veteran new examinations that address the issue of an increased rating for DDD of the lumbar spine and entitlement to TDIU. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of the complete updated VA clinical and private records of all evaluations and treatment the Veteran received for his service-connected DDD of the lumbar spine, to include private treatment reports from Dr. K. K. S. All requests for records and responses must be associated with the claims folder. 2. Provide the Veteran and his representative with appropriate notice regarding the issue of entitlement to TDIU, to include the need to file any required claims forms. 3. After the above has been completed, schedule the Veteran for an appropriate VA examination to determine the nature, extent, frequency, and severity of any orthopedic and neurologic impairment related to the Veteran's service-connected lumbar spine disability. The claims folder should be made available to and reviewed by the examiner. a. The examiner should identify all orthopedic and related neurological pathology found to be present in the Veteran's lumbar spine. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's back. b. The examiner should determine whether the lumbar spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. c. The examiner should state whether the lumbar spine disability has been productive of any peripheral neuropathy or radiculopathy in the Veteran's lower extremities. In doing so, reconcile the findings with the May 2013 letter from the Veteran's private physician. i. If the Veteran is diagnosed with peripheral neuropathy or radiculopathy, the examiner is requested to provide a definitive opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's peripheral neuropathy or radiculopathy is related to his service-connected DDD of the lumbar spine. ii. If the examiner determines that any peripheral neuropathy found is related to the Veteran's service-connected DDD of the lumbar spine, the examiner is asked to express an opinion as to the nerve involved and the severity of the nerve involvement in terms of being mild, moderate, or severe. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R § 4.6 (2014). d. The examiner is also asked to indicate whether the Veteran has any other neurological symptoms related to his service connected low back disability, including any bowel or bladder problems attributable to the service-connected lumbar spine disability. 4. Thereafter, the Veteran should be scheduled for a VA evaluation to ascertain and evaluate whether his service-connected disability renders him unable to secure or follow a substantially gainful occupation. The examiner is requested to address the impact of the Veteran's service-connected disability on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. When addressing the functional limitations, the examiner should not consider the effects of age or any nonservice-connected disabilities. The examiner should address the functional effects of the Veteran's service-connected disability. 5. Thereafter, if the required disability percentage under 38 C.F.R. § 4.16(a) (2014) is not met, the claim must be referred to the Director of Compensation for consideration of an extraschedular TDIU rating. 6. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resorting to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 7. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Appellant 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 2014). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).