Citation Nr: 1603046 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 14-27 932A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation in excess of 40 percent for service-connected residuals of lumbar strain with intervertebral disc disease. 2. Entitlement to an earlier effective date than August 1, 2010, for a 40 percent rating for service-connected residuals of lumbar strain with intervertebral disc disease. 3. Entitlement to an increased rating in excess of 20 percent for service-connected right leg radiculopathy. 4. Entitlement to service connection for left leg radiculopathy, claimed as secondary to service-connected disabilities. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to November 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2011 and October 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which in pertinent part, continued the evaluation of 20 percent for service-connected lumbar strain and 10 percent for service-connected right leg radiculopathy; and denied entitlement to service connection for left leg radiculopathy. In a June 2014 rating decision, the RO found clear and unmistakable error (CUE) in the May 2011 rating decision by continuing the evaluation for the lumbar strain at 20 percent when the evidence showed that the 40 percent criteria based on limited flexion to 20 degrees had been established. Thus, the RO assigned a 40 percent evaluation effective August 1, 2010, the day following the end of the Veteran's temporary total evaluation for his back surgery and convalenscence. Thereafter, the Veteran's substantive appeal raised the claim for an increased rating in excess of 40 percent for service-connected lumbar strain as well as an earlier effective date prior August 1, 2010, which has been reflected on the title page. The Board observes that in a December 2014 correspondence, the Veteran indicated that he wanted a Board hearing by live videoconference. In December 2015, the Veteran submitted a written request to withdraw his hearing request and indicated that he did not wish to appear at another Board hearing. Therefore, the Board deems the hearing request properly withdrawn. 38 C.F.R. § 20.704(d) (2015). Also, the Veteran raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected lumbar strain disorder and right leg radiculopathy. In Rice v. Shinseki, the Court held that, when entitlement to a TDIU is raised during the administrative appeal of the underlying disability for an increased rating, it is part of the claim for benefits for that underlying disability. See Rice v. Shinseki, 22 Vet. App. 447, 454-554 (2009). In this function, the Board may infer a claim for a TDIU due to the increased rating claim for service-connected lumbar strain and right leg radiculopathy disorder, because these are the underlying disabilities at issue in this appeal. Id. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims, so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). At the outset, the Board notes that the Veteran reported receiving treatment from the Bay Pines VA Medical Center (VAMC) and Pinellas High Field Open MRI. See November 2012 VA 21-4142 Authorization for Release of Information. The current claims file contains treatment records from the Bay Pines VAMC through July 2012 and a June 2004 record from Pinellas High Field Open MRI. On remand, VCAA notice and efforts should be made to obtain outstanding records of any relevant VA and non-VA treatment he may have received, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). See also Bell v. Derwinski, 2 Vet. App. 611 (1992). I. Lumbar strain Disability Although the Veteran was provided with a VA examination in December 2010, review of the examination report reflects that it is inadequate upon which to base an appellate decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one). The Board observes that the VA examiner provided a diagnosis of lumbar strain with intervertebral disc disease without addressing whether the Veteran experienced any incapacitating episodes within the previous 12 months. In addition, the Veteran asserts that he is in severe and debilitating pain regardless of whether he is standing, sitting, or lying down. When determining the appropriate rating for spine disabilities, the regulations provide that separate evaluations are warranted for incapacitating episodes due to intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Note (1) (2015). However, the December 2010 VA examiner did not provide whether the Veteran's intervertebral disc syndrome resulted in any incapacitating episodes within the previous 12 months when conducting the examination of the lumbar strain. Accordingly, the Veteran should be provided with a new VA spine examination which adequately addresses all of the symptoms of his service-connected lumbar strain disability. II. Right Leg Radiculopathy In a May 2011 rating decision, the RO continued the 10 percent rating for right leg radiculopathy. The Veteran indicated that he disagreed with the rating and argued that his condition should be deemed "severe" given the medical findings of hypoactive ankle jerk; decreased motor strength in the bilateral hip, knee, ankle, and toes; loss of sensation; neuritis; and neuralgia; as well as pain, tingling, and numbness. The Veteran was last examined in January 2011. A reflex examination of the right peripheral nerves indicated normal knee jerk and plantar flexion but hypoactive ankle jerk. The VA examiner summarized the sensory examination as decreased vibratory sensation to the bilateral lower extremities from the knee joint distally, decreased light touch or pinprick from the mid-calf distally, and normal position sense to the lower extremities. The examiner confirmed the presence of neuritis and neuralgia. With regards to the effect on the Veteran's occupation, the examiner reported that the Veteran is not able to climb onto roofs for inspection due to his back and leg issues. The examiner, however, did not discuss the level of severity of these deficits while the evidence is also inadequate to address the current level of severity of the Veteran right leg radiculopathy. As such, this claim unfortunately presents certain medical questions that cannot be answered by the Board. Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Therefore, the Board finds that a remand is warranted. III. Left Leg Radiculopathy With regards to the issue of entitlement to service connection for left lower extremity radiculopathy, the Board notes that this issue was denied by the RO in October 2012. The basis of the denial was that a September 2012 VA examiner found no evidence of left leg radiculopathy. Subsequently, in September 2014, the Veteran submitted November 2011 VA treatment record from the Bay Pines VA Medical Center (VAMC) which indicated that the Veteran had symptoms of left leg sciatica of mild to moderate degree. A July 2012 VA treatment record also showed that the Veteran's chief complaint included occasional left lumbar radiculopathy. As above, the Board has remanded the claim for an increased rating for lumbar strain based on allegations of an increase in severity. Given the allegations regarding neurological problems of the left lower extremities secondary to the low back, the Board finds that a remand of the left lower extremity issue is also necessary to ascertain whether the Veteran currently has a neurological disorder of the left lower extremities and, if so, whether such is related to the Veteran's service-connected lumbar back strain. IV. TDIU Finally, as indicated in the Introduction, the issue of entitlement to a TDIU is considered part and parcel of the Veteran's increased rating claims. See Rice, supra. However, the Board finds that further development is necessary for a fair adjudication of the TDIU aspect of the claim. Therefore, on remand, the Veteran should be provided VCAA notice regarding the information and evidence necessary to substantiate a TDIU, be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and the AOJ should obtain all outstanding treatment records regarding his service-connected disabilities. Furthermore, an opinion regarding whether such disabilities, either singularly or jointly, render the Veteran unemployable should be obtained. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Furnish to the Veteran a letter requesting that he provide information and, if necessary, authorization, to enable it to obtain any additional VA or non-VA treatment records pertinent to the claim on appeal, to include the Bay Pines VAMC and Pinellas High Field Open MRI. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 3. Thereafter, schedule the Veteran for VA neurological and spine VA examinations. The claims folder is to be made available for the examiner to review; each examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. Lumbar Strain Disability The examiner must conduct a complete range of motion study on the Veteran's low back. The examiner must record the range of motion observed on clinical evaluation, in terms of degrees. If there is clinical evidence of pain on motion, the examiner must indicate the degree of motion at which such pain begins. The examiner must also state whether the Veteran has muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour. If the Veteran is found to have intervertebral disc syndrome (IVDS), the examiner must state whether the Veteran experiences incapacitating episodes, defined as periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. If the Veteran is found to experience incapacitating episodes, the examiner must estimate the total duration of the episodes over the previous 12 months. The examiner should also comment on the effect the Veteran's lumbar strain disability has on occupational impairment. Right Leg Radiculopathy The examiner must address the severity of the Veteran's right leg radiculopathy symptoms and any other neurologic disorders found as a result of the Veteran's service-connected low back disability. The examiner should indicate whether the Veteran's right leg radiculopathy is mild, moderate, moderately severe, severe with marked muscular atrophy or whether the Veteran has complete paralysis. Left Leg Radiculopathy The examiner should offer an opinion as to whether it is at least as likely as not that such neurological disorder(s) of the left lower extremity is related to the Veteran's military service, or caused OR aggravated by his back disability. TDIU Following a review of the record, the examiner should render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. In this regard, the Veteran is service-connected for residual of lumbar strain with intervertebral disc disease and right leg radiculopathy associated with the lumbar strain disability. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 4. 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, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain 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. 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).