Citation Nr: 1604614 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 08-32 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to a compensable rating for a low back disability prior to May 17, 2010, a rating in excess of 10 percent from May 17, 2010, to May 16, 2012, and a rating in excess of 40 percent as of May 17, 2012. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 17, 2012. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1988 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The case was remanded for additional development in April 2010. The Board notes that a June 2015 rating decision granted an increased 10 percent rating for a low back disability effective May 17, 2010, and an increased 40 percent rating effective May 17, 2012. However, as that increase does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The decision also established service connection for radiculopathy of the right lower extremity, and assigned a 20 percent rating effective May 17, 2012; established service connection for radiculopathy of the left lower extremity, and assigned a 10 percent rating effective May 17, 2012; and granted entitlement to TDIU, effective May 17, 2012. Although the TDIU issue previously on appeal was noted to have been fully resolved in the June 2015 rating decision, a claim for entitlement to TDIU is a rating theory and not a separate claim for benefits. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the low back disability rating claim remains on appeal, the Board finds TDIU prior to May 17, 2002, must be addressed as part of appellate review. REMAND Although the issues on appeal have been previously remand, the Board finds that further development is required. The Board notes that VA treatment records show the Veteran receives Social Security Administration (SSA) disability benefits, and that where SSA disability benefits have been granted a remand to obtain SSA records is required. Quartuccio v. Principi, 16 Vet. App. 183 (2002). After the additional SSA records and all pertinent current VA treatment records have been obtained and added to the record, a VA medical opinion must be obtained for clarification and date of onset of any neurologic symptoms associated with the low back disability issue on appeal. The Board notes that the Veteran's claim for an increased rating for service-connected low back disability was received by VA on March 29, 2006, and that in subsequent statements the Veteran reported having shooting pain and nerve problems to the lower extremities. In support of the claim, she provided a copy of a July 2005 private treatment report which noted an abnormal electromyography (EMG) study with evidence of a mild sensory neuropathy. There were either absent or low amplitude sural responses in the lower extremities and the left H response was absent which might be due to the neuropathy or to a chronic S1 radiculopathy. A September 2005 report noted the Veteran had an approximately one year history of foot dysesthesias that was gradually increasing. It was noted that EMG studies supported the diagnosis of small fiber neuropathy. VA examination in October 2007 provided a diagnosis of lumbar spondylosis and noted that a July 21, 2006, non-VA MRI study revealed mild spondylotic changes at L1-2, L2-3, and L5-S1 and mild disc bulges at those levels, but with no significant stenosis or nerve root impingement. A May 2010 VA examiner noted the Veteran did not have any signs or symptoms of intervertebral disc disease, that plain films and MRI studies were completely normal, that there was nothing physiologic that was causing low back pain or claimed radiculopathy, and had no physical examination signs consistent with radiculopathy or nerve root impingement. A diagnosis of psychogenic back pain with radicular like complaints was provided and in a November 2010 addendum the examiner affirmed the diagnosis of psychogenic back pain. An August 2010 VA treatment report noted numbness and tingling in the feet secondary to neuropathy, but that the cause of the neuropathy was unknown. It was also noted a medical history including diagnoses of diabetes mellitus, Sjögren's syndrome, and fibromyalgia. VA examination on May 17, 2012, included a diagnosis of degenerative disc disease of the lumbar spine and noted a date of diagnosis in 1991. In an October 2012 addendum report, the examiner found that objective evidence supported the severity of the Veteran's current low back condition. As rationale it was noted that lumbar disc bulges often touched nerves intermittently causing decreased pain which could lead to decreased range of motion, numbness, and tingling and that bulging discs did not have to rest on the nerve indefinitely before those symptoms occurred. A February 2015 VA medical opinion was provided for clarification of the inconsistent medical evidence of record which noted that a review of records and prior examinations had been completed. It was the examiner's opinion that the Veteran's lumbar spine condition most likely indicated a progression over time. The May 2012 and October 2012 findings were felt to accurately represent the objective findings of progression of the lumbar spine condition and radicular symptoms. No comments were provided as to the findings reported prior to May 2012. The Board finds that an additional clarifying medical opinion is required for an adequate determination. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Obtain any pertinent records associated with the Veteran's claim for SSA disability benefits. 3. Schedule the Veteran for a VA examination to obtain a clarifying opinion addressing the date of onset of any neurologic symptoms associated with the low back disability issue on appeal. The examiner must review the evidence of record and note that review in the report and should specifically consider the neurologic findings prior to May 2012 The examiner should provide a complete rationale for any opinion provided. The examiner should provide the information necessary to rate spine disabilities. 4. Then, readjudicate the claim on appeal. If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts 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).