Citation Nr: 1550887 Decision Date: 12/04/15 Archive Date: 12/16/15 DOCKET NO. 11-02 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for low back degenerative disc disease prior to April 19, 2011. 2. Entitlement to an initial evaluation in excess of 20 percent for low back degenerative disc disease on or after April 19, 2011, excluding the periods from June 30, 2011, to December 31, 2011, and from May 3, 2012, to November 30, 2012. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Michigan Department of Military and Veterans Affairs (Michigan Veterans Affairs Agency) WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction over the case was subsequently transferred to the RO in Detroit, Michigan. Initially, the Board notes that the Veteran is now represented by the above-named recognized service organization, and a VA Form 21-22 is of record. In a June 2011 rating decision, the RO increased the evaluation for the low back disability to 20 percent, effective from April 19, 2011. In addition, the RO granted temporary total evaluations based on surgical treatment necessitating convalescence in an August 2012 rating decision for low back surgeries performed in June 2011 and May 2012. The RO extended the temporary total evaluation periods in a July 2014 rating decision. Nevertheless, as the staged 10 percent and 20 percent evaluations do not represent the highest possible benefit, the issue remains in appellate status as recharacterized above. AB v. Brown, 6 Vet. App. 35, 38 (1993). In an August 2011 rating decision, the RO granted separate 10 percent evaluations for radiculopathy of the bilateral lower extremities associated with the low back disability. The Veteran did not express disagreement with that decision. In a March 2013 rating decision, the RO granted separate 20 percent evaluations for peripheral neuropathy of the bilateral lower extremities associated with the service-connected diabetes mellitus and reclassified the radiculopathy disabilities to be rated with the peripheral neuropathy disabilities, effective from July 31, 2012, for reasons explained in that decision. A videoconference hearing was held before the undersigned Veterans Law Judge in October 2015. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issues on appeal, with the exception of additional VA treatment records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran's increased evaluation claim. Specifically, it appears that there may be outstanding and relevant private treatment records, as detailed in the directives below. While on remand, updated VA treatment records should also be obtained. In addition, the Veteran had low back surgery in May 2012. He was most recently provided a VA spine examination in September 2012 in connection with a TDIU claim. The examiner indicated that the examination was limited, as the Veteran was unable to perform range of motion testing at that time because he was wearing a back brace due to the recent fusion surgery, and his attending physician had asked him not to bend. During the Board hearing, the Veteran also indicated that he had bowel and bladder issues, but he was not sure if they were related to his low back disability. See October 2015 Bd. Hrg. Tr. at 24-25. Based on the foregoing, the Board finds that an additional VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected low back disability. Finally, the RO denied entitlement to TDIU in a March 2013 rating decision. The Veteran did not express disagreement with that decision. Nevertheless, the Veteran later testified during the Board hearing that he stopped working in 2006 due to his back. See October 2015 Bd. Hrg. Tr. at 27-28. Thus, he raised the issue again after the prior final denial. The Board observes that the Veteran's combined evaluation was temporarily increased to 100 percent following his recent low back surgeries (during which he also received special monthly compensation (SMC) under 38 C.F.R. § 1114(s) (2015)), and his combined evaluation is currently 100 percent with SMC under 38 C.F.R. § 1114(k); however, the TDIU claim currently raised by the record survives. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to SMC based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). Thus, the AOJ should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his low back disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for any additional private treatment the Veteran has received, as reported at the October 2015 Board hearing. See Bd. Hrg. Tr. at 14-19. It is noted that the Veteran indicated that he would be submitting additional medical evidence from Dr. J.F. on the day of the hearing; however, there are no additional treatment records from this provider in the record before the Board. The AOJ should also obtain any outstanding and relevant VA treatment records, including from the Battle Creek VA Medical Center and Lansing Outpatient Clinic dated from December 2012 to the present. 2. After completing the above action, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected low back degenerative disc disease. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should report all signs and symptoms necessary for evaluating the Veteran's low back disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. The examiner should also state the total duration of any incapacitating episodes over the past 12 months and identify and identify any neurological manifestations of the service-connected low back disability. See, e.g., October 2015 Bd. Hrg. Tr. at 24-25 (Veteran indicated that he had bowel and bladder issues, but he is not sure if they are related to his low back disability). The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner should also state whether there are any scars related to the Veteran's low back disability. If so, he or she should provide the findings necessary under the rating criteria for scars. It should be noted that the Veteran is separately service-connected for cervical spine limitation of motion and associated headaches and bilateral lower extremity radiculopathy associated with the service-connected low back disability. If the examiner is unable to distinguish between the symptoms associated with the service-connected low back disability and any symptoms associated with a nonservice-connected disorder, he or she should state so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should also consider whether the Veteran is entitled to TDIU based on impairment attributable to his service-connected disorders, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be reviewed by the AOJ based on review of the entire VBMS and Virtual VA electronic claims files. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ J.W. ZISSIMOS 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) (2015).