Citation Nr: 1605077 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 11-28 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to May 21, 2011, and to a rating in excess of 40 percent thereafter, for minimal degenerative facet joints, L4-S1, lumbar spine, bulging disc at L4-5 and L5-S1. 2. Entitlement to a separate compensable rating for left lumbar radiculopathy. 3. Entitlement to service connection for bunions of bilateral feet status post right foot bunionectomy. 4. Entitlement to service connection for Guillain-Barre syndrome (GBS). 5. Entitlement to total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: James Fausone, Attorney ATTORNEY FOR THE BOARD R. Jones, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) in the Army National Guard (ANG) from August 7, 1991 to December 18, 1991. The record indicates that the Veteran was in the ANG from January 25, 1991 to January 25, 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from February 2009 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The February 2009 rating decision on appeal granted the Veteran service connection for minimal degenerative facet joints, L4-S1, lumbar spine, bulging disc at L4-5 and L5-S1, with left lumbar radiculopathy. The Veteran's attorney asserts that the Veteran is not only entitled to higher initial ratings for her low back disorder, but that she is also entitled to a separate compensable rating for her left lower extremity radiculopathy. Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that any objective neurologic abnormalities associated with a spinal disability are to be separately rated under an appropriate diagnostic code. See 38 C.F.R. § 5243, Note (1). In the interests of clarity, the Board has characterized the claim for a separate compensable rating for left lower extremity radiculopathy as a separate issue currently on appeal before the Board. The Veteran's VBMS electronic file shows that the RO issued a rating decision in January 2016 denying service connection for a right lower extremity radiculopathy disability. The Board notes that if the Veteran is subsequently shown to have right lower extremity radiculopathy disability stemming from her service-connected low back disability she may be entitled to a separate compensable rating for such. See 38 C.F.R. § 5243, Note (1). In September 2013 the RO issued a statement of the case regarding an issue of entitlement to an earlier effective date for the assignment of a 40 percent rating for the Veteran's service-connected low back disorder. The Board notes that the Veteran was granted service connection for her low back disorder by the February 2009 rating decision currently on appeal. The claim for an increased rating is on appeal since the grant of service connection. Consequently the claim for a 40 percent rating prior to May 21, 2011 is encompassed in the currently appealed increased rating claim. Consequently, it is inappropriate for there to be a separate and distinct earlier effective date issue regarding the 40 percent rating assigned to the Veteran's low back disability at this time. A claim for TDIU is deemed to have been submitted as part of any claim for a higher initial evaluation when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest evaluation possible. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case the Veteran has been awarded Social Security Administration (SSA) disability benefits and her attorney has asserted that the Veteran's service-connected disabilities cause her to be unemployable. Accordingly, there is an implicit claim for TDIU. Id. The Veteran's electronic VA folders (Virtual and VBMS) have been reviewed and considered by the Board in conjunction with this decision. The Board notes that the Veteran's VBMS file contains additional pertinent SSA records that were not of record prior to certification of the Veteran's appeal to the Board. In this case all of the Veteran's appeals must be remanded for further development and the RO will have an opportunity to consider these records prior to any Board adjudication of the claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks an initial rating in excess of 10 percent prior to May 21, 2011, and to a rating in excess of 40 percent thereafter, for minimal degenerative facet joints, L4-S1, lumbar spine, bulging disc at L4-5 and L5-S1, with left lumbar radiculopathy. She has asserted that she is entitled to a separate compensable rating for her left lumbar radiculopathy disability. The Veteran's attorney asserted in January 2014 that the Veteran's VA examination of the spine in May 2011 was inadequate in its description of the Veteran's low back symptoms. He noted that the examination did not indicate at what point on motion of the spine pain began. Given this omission and given that the Veteran has not had a VA examination of her spine for almost five years, a new VA examination must be obtained to determine the current severity of her low back disability. At the May 2011 VA examination the Veteran reported continuing treatment for her back pain by a Dr. White. The most recent treatment record in the claims file from Dr. White is dated in May 2008. The AOJ must obtain copies of the Veteran's records of treatment by Dr. White dated since May 2008. The Veteran asserts that her bilateral foot disability was permanently aggravated by her military service. A June 2005 private medical record notes that the Veteran reported that her bunion disability was worse when she wore her boots in the National Guard. A VA medical opinion must be obtained regarding whether the Veteran's disability of the feet was aggravated (permanently worsened) by her Reserves service. The record contains a November 2013 RO memorandum stating that the Veteran's service treatment records are unavailable. The memorandum refers to service dates that are incorrect and prior to the Veteran's date of birth. An attempt must be made to obtain any additional service medical records from the Veteran's period of service in the Reserves. The record indicates that the Veteran was in the Reserves from January 25, 1991 to January 25, 2008. The Veteran maintains that she developed GBS due to a military flu shot. The record contains a March 11, 2009 printout indicating that the Veteran had obtained a flu shot on October 14, 2008, as required by her Unit. The dates and types of the Veteran's Reserves service are not of record. This information is relevant to the Veteran's claim and should be obtained. Additionally, the Veteran's service personnel records should be obtained and associated with the Veteran's claims file. A February 2009 private medical record in the Veteran's VBMS electronic folder shows that the Veteran was treated by a Dr. Smith. The Veteran reported to Dr. Smith that a Dr. Harper believed that the Veteran developed GBS due to a military flu shot. The record contains the copies of the Veteran's inpatient treatment records at Springhill Medical Center where she was treated by Dr. Harper in November 2008 for GBS. It is unclear whether the Veteran received additional treatment from Dr. Harper after discharge from the medical center. If so, copies of such treatment records should be obtained. The Board notes that a VA medical opinion regarding whether the Veteran's GBS was caused by a flu shot would be helpful in deciding the Veteran's claim and should be obtained. The TDIU issue must be remanded because it is inextricably intertwined with the increased rating claim and they must be considered together. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain through official sources the Veteran's service treatment and personnel records. If any further records cannot be obtained and further attempts would be futile, such should be noted in the claims file with a memorandum of unavailability and the Veteran should be notified thereof. 2. Contact the Defense Financial Services (DFAS), or any other appropriate government repository, and request any the record(s) that identify the specific dates and corresponding nature (i.e., active duty, ACDUTRA, or INACDUTRA) of the Veteran's Reserves service. This information is to be placed in a clear chart, timeline, or memorandum. If such records cannot be obtained and further attempts would be futile, such should be noted in the claims file with a memorandum of unavailability and the Veteran should be notified thereof. 3. Ask the Veteran to provide information and completed authorization release forms for all treatment for the spine, feet and GBS that has not already been submitted. This should include authorization for Dr. White for records of treatment from May 16, 2008 to present, and authorization for Dr. Harper for records of treatment from November 2008 to present. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and all records and/or responses received should be associated with the claims file. If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, inform the Veteran that she is ultimately responsible for providing the evidence. 4. When the above actions have been completed, afford the Veteran a VA examination to determine the current nature and severity of her lumbosacral spine disability. The claims file should be made available for the examiner to review, and the examination report should indicate that this was accomplished. All indicated studies of the lumbar spine, including range of motion studies in degrees, should be performed and the point at which any pain on motion begins should be noted. The examiner should indicate whether the Veteran's low back disorder results in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. Further, the examiner should also discuss the nature and severity of any right and left-sided radiculopathy or neuropathy found to be present. The examiner must also state whether the Veteran has any other neurological disabilities related to her low back disability in addition to the already service-connected left lower extremity radiculopathy, including but not limited to a right lower extremity radiculopathy, and/or bowel or bladder problems. 5. When the actions in paragraphs 1-3 above have been accomplished, afford the Veteran a VA examination of the feet. The claims file should be made available for the examiner to review, and the examination report should indicate that this was accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater the Veteran's disability of the feet was aggravated (permanently worsened) by her Reserves service. The supporting rationale for all opinions expressed should be provided. 6. When the actions in paragraphs 1-3 above have been accomplished, forward the Veteran's claims file to a neurologist. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) the Veteran developed Guillain-Barre syndrome due to a military influenza vaccination. The supporting rationale for all opinions expressed should be provided. 7. Then readjudicate the Veteran's claims, including the issue of intitlement to a separate compensable rating for left lumbar radiculopathy. If any benefit sought on appeal is denied, issue a supplemental statement of the case that reviews all the evidence received since the December 2013 statement of the case and December 2013 supplemental statement of the case, to include the newly received SSA medical records in the Veteran's VBMS electronic file. Provide the Veteran and her representative an opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ MICHAEL A. PAPPAS 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).