Citation Nr: 1546238 Decision Date: 11/02/15 Archive Date: 11/10/15 DOCKET NO. 09-45 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased rating for service-connected lumbosacral strain (back disability), currently rated as 40 percent disabling, to include consideration of entitlement to separate ratings for objective neurological abnormalities. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Entitlement to service connection for cervical subluxation. REPRESENTATION Veteran represented by: Cheryl R. King, Agent ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran had active service from November 1985 to January 1987. These matters came to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland that denied the Veteran's claim for increase in the service-connected back disability. In a May 2013, the RO issued a rating decision denying service connection for cervical subluxation associated with the service-connected back disability and a bilateral leg numbness associated with the service-connected back disability. The Veteran filed a timely Notice of Disagreement to these denials. As to the claim for cervical subluxation, the Board remands this claim pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) to enable to Agency of Original Jurisdiction (AOJ) to issue a Statement of the Case as to this claim. As to the claim for service connection for bilateral leg numbness, the Board finds that this claim is already part of the claim for an increased rating for the service-connected back disability, as it is an assentation that the disability involves associated neurological abnormalities. See Note (1), General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a. As such, the Board has characterized the issue on appeal to reflect this. The Veteran has asserted that his service-connected disabilities, to specifically include the back disability, prevent him from sustaining gainful employment. See November 2009 VA Form 9. The Veteran's service-connected ratings meet the schedular criteria for TDIU consideration. See 38 C.F.R. § 4.16a. As discussed further below, the issue of entitlement to TDIU has been raised by the record and the Board directs that entitlement to this benefit be further addressed upon remand. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran requested a hearing. The Veteran was scheduled for this hearing, but failed to appear without explanation and there is no indication of returned mail. Although cognizant that the Veteran had previously been incarcerated, the evidence of record indicates that he was released from incarceration prior to the hearing. Under these circumstances, the Board finds no outstanding request for a hearing. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Prior to final adjudication of this appeal, additional development is necessary. See 38 C.F.R. § 19.9 (2015). The Veteran was provided VA examination in June 2006 that evaluated him for his service-connected back disability. He was subsequently provided an August 2010 VA examination pursuant to development of an appeal related to bilateral leg numbness associated with the back disability and this examination also contains findings related to the back disability. The AOJ has not considered this examination when adjudicating the appeal presently before the Board (and instead treated this as a separate claim for a neurological disability of the lower extremities). Further, as noted in the Introduction, the issue of TDIU has been raised by the record; there is no examination of record that addresses this aspect of the appeal. Upon remand, the Veteran should be provided an examination that addresses the current severity of his spine disability, to include evaluation of any associated neurological abnormalities (such as that related to numbness of the lower extremities) and consideration of the functional impairment his service-connected spine disabilities has on his ability to maintain substantial gainful employment. Further, as the issue of entitlement to TDIU has been raised, the Veteran should be provided VCAA notice as to entitlement to TDIU. In addition, the record indicates that the Veteran has applied for disability benefits from the Social Security Administration (SSA). See June 2015 VA Mental Health Clinic Intake Evaluation. These records may be relevant to the issue on appeal, especially the issue of entitlement to TDIU. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). Upon remand, these records should be obtained. The claims file contains VA treatment records from the Hagerstown, Maryland Outpatient Clinic, Martinsburg, West Virginia VA Medical Center (VAMC), and the Philadelphia, Pennsylvania VAMC, with these records being last updated in July 2015. Upon remand, the AOJ should update these records. Lastly, as noted in the Introduction, the Veteran filed a timely NOD as to the issue of cervical subluxation and the Board remands this claim pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice for a claim for TDIU. 2. Obtain any relevant records, to include any decisions and underlying records, related to disability claims filed with SSA. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should follow the provisions in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Obtain treatment records from the Hagerstown Outpatient Clinic, Martinsburg VAMC, and Philadelphia VAMC from July 2015 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should follow the provisions in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After completing directives (1)-(3), the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his service-connected back disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should provide findings related to all symptoms of the Veteran's back disability, to include range of motion testing. The examiner should also evaluate the Veteran for any associated neurological disabilities, and catalogue such in the Disability Benefits Questionnaire. In addition, the examiner should discuss the functional impact the back disability has on the Veteran's ability to work, consistent with the Veteran's education and training. Thorough rationale for all opinions provided should be included in the examination report. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claims for increase for the service-connected back disability, to include consideration of ratings for all associated objective neurological disabilities. Also consider the issue of TDIU based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 6. Issue a Statement of the Case addressing entitlement to service connection for cervical subluxation. Notify the Veteran and his representative of his appeal rights and that he must file a timely Substantive Appeal (on VA Form 9) if he desires to perfect the appeals of this claim. 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 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).