Citation Nr: 1508864 Decision Date: 03/02/15 Archive Date: 03/17/15 DOCKET NO. 10-36 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis. 2. Entitlement to a rating for a lumbar spine disability in excess of 20 percent prior to May 25, 2011, and after July 31, 2011. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the appeal was subsequently transferred to the Houston, Texas, RO. In January 2014, the RO assigned a temporary 100 percent rating for the lumbar spine disability due to surgical treatment necessitating convalescence, effective May 25, 2011, to July 31, 2011. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet.App. 35 (1993). In January 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. During the hearing, the Veteran testified that he was unemployable due, in part, to his service-connected lumbar spine disability. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the issue on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND During the January 2015 hearing, the Veteran reported that he is in receipt of Social Security Disability Income due, in part, to the back disability on appeal. As records pertaining to these Social Security Administration (SSA) benefits may be relevant to the appeal, they must be associated with the claims file. 38 C.F.R. § 3.159(c)(2) (2014); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). During the January 2015 hearing, the Veteran also reported that he continues to receive treatment for his lumbar spine disability at San Antonio Military Medical Center. Upon remand, any outstanding treatment records must be associated with the claims file. 38 C.F.R. § 3.159(c)(2). During the January 2015 hearing, the Veteran testified that his lumbar spine disability had worsened since his last VA examination in January 2013. At the January 2013 VA examination, the Veteran described intermittent sharp mostly right-sided low back pain. The examiner opined that the Veteran's back disability did not impact his ability to work. At the January 2015 hearing, the Veteran reported that pain prevents him from sitting for more than 30 minutes, standing for more than 15 minutes, and causes balance issues. He also reported that he has to hold onto a rail to climb stairs and that he cannot do certain things around the house, like mow the lawn. As the evidence suggests a material change in the disability, reexamination is warranted under 38 C.F.R. § 3.327 (2014). Finally, the Board notes that the January 2013 VA examination report suggests that the Veteran has sensory deficits of the lower extremities and radiculopathy of the lower left extremity due to the service-connected lumbar spine disability. On remand, an opinion must be obtained to determine if such manifestations of the lower extremities are part of or related to the Veteran's service-connected lumbar spine disability. See 38 C.F.R. § 4.71(a), General Rating Formula for Disease & Injuries of the Spine, Note (1)(2014). Accordingly, the case is REMANDED for the following action: 1. Obtain complete SSA records. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain any outstanding VA treatment records from San Antonio Military Medical Center. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination by an appropriate medical professional. The examiner must review the entire claims file, to include all electronic files. The examiner is to determine the current severity of the Veteran's service-connected lumbar spine disability. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any neurological abnormalities of the lower extremities (such as radiculopathy) are related to the service-connected lumbar spine disability. The examiner is to address the January 2013 VA examination report indicating mild radiculopathy of the lower left extremity and absent reflexes in the ankles. The examiner is to elicit information regarding the Veteran's education, training, and work history. The examiner is to report how the Veteran's lumbar spine disability impacts his ability to work. The examiner should opine as to whether the Veteran's service-connected lumbar spine disability by itself or in concert with his other service-connected disabilities would preclude the Veteran from obtaining or maintaining substantially gainful employment, given the Veteran's education level and prior work experience, but without regard to the Veteran's age or nonservice-connected disabilities. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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 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). _________________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).