Citation Nr: 1617012 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 12-08 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for degenerative disc disease of the cervical spine, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston Texas. The July 2008 rating decision denied ratings in excess of 10 percent for degenerative disc disease of the lumbar and cervical spines, and denied entitlement to a TDIU. A notice of disagreement was received in May 2009, a statement of the case was issued in March 2012, and a substantive appeal was received in March 2012. Jurisdiction of this appeal has been transferred to the RO in St. Petersburg, Florida. In August 2009, the Veteran's accredited representative requested that the Veteran be scheduled for a hearing before a Decision Review Officer. The Veteran withdrew this request in writing in January 2012. In October 2014, the Board remanded this case in order to schedule the Veteran for a videoconference hearing at her local RO. In March 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The issue of entitlement to service connection for depression as secondary to her service-connected back disability has been raised by the record in the March 2012 substantive appeal, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has requested entitlement to ratings in excess of 10 percent for her service-connected degenerative disc disease of the lumbar spine and degenerative disc disease of the cervical spine. Before this claim may be properly adjudicated, the Board finds that a remand for additional development is warranted. The Court has held that a veteran is entitled to a new VA examination where there is evidence, including his or her own statements, that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran last underwent VA back and neck examinations in February 2012. At that time, the Veteran expressly denied any radicular symptoms or bowel/bladder dysfunction and, on examination, the Veteran had no symptoms due to radiculopathy. These findings are consistent with VA and private medical evidence of record, all from prior to the February 2012 VA examinations, that consistently reflects no radiculopathy or other neurologic impairment. At her March 2016 Board hearing, the Veteran testified that, for the last year or more, she has been experiencing numbness in her left leg, and that she has experienced numbness coming up through her right leg for the last few months. She reported that she was told that these symptoms are due to her degenerative disc disease. Given the Veteran's reports of neurologic back symptoms that were not present at the time of her most recent VA examination, the Board finds it necessary to remand the claim of entitlement to an increased rating for degenerative disc disease of the lumbar spine for a new VA examination in order to assess the current severity of this disability, to include the existence and severity of any neurologic abnormalities. While the Veteran is undergoing examination for her lumbar spine, evaluation of the severity of her cervical spine disability and any associated neurologic abnormalities is also appropriate. Finally, the Board finds that the claim of entitlement to a TDIU is inextricably intertwined with the increased rating claims being remanded herein, because adjudication of the back and neck claims may affect the merits and outcome of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Veteran's claims of entitlement to increased ratings for degenerative disc disease of the neck and of the back must be fully adjudicated and developed before the Board can render a final decision regarding her TDIU claim. Therefore, the Board must defer consideration on the TDIU issue until such time as the necessary evidentiary development of the back and neck disability claims is completed. The record reflects that the Veteran's VA medical records were last obtained in May 2009. While this case is on remand, the AOJ should obtain the Veteran's VA medical records from May 2009 to the present. Finally, at her March 2016 Board hearing, the Veteran testified that she receives treatment for her spine from "Dr. L.J.R." and that she has had multiple surgical procedures in connection with a nerve stimulator implant. She also testified that the last surgery was approximately two years ago. Records from "Dr. L.J.R." were last obtained in November 2011. On remand, the Veteran should be asked to complete any necessary authorizations to allow VA to obtain updated treatment records from "Dr. L.J.R." Alternatively, the Veteran should be notified that she may obtain these records herself and submit them to VA. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical records (including any that were created after VA last obtained the Veteran's records in May 2009) and associate these records with the claims file. 2. Ask the Veteran to fill out the appropriate authorization to allow VA to obtain her medical records from "Dr. L.J.R." dated from November 2011 to the present and for all health care providers who have treated her for her back and neck disabilities. The Veteran should also be notified that she may submit these records herself. After securing any necessary releases, request any identified records. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 3. Following completion of the above, arrange for the Veteran to undergo a VA examination to determine the severity of her degenerative disc disease of the lumbar spine and degenerative disc disease of the cervical spine. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should list the ranges of motion of the Veteran's back and neck in all directions. After reviewing the claims folder, obtaining a history of complaints from the Veteran, and conducting a thorough examination of the Veteran, the examiner should respond to each of the following inquiries: a. Does the back or neck exhibit weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability? (If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms.) b. Does pain significantly limit functional ability during flare-ups or when the back or neck is used repeatedly over a period of time? (These determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.) c. The examiner should also describe the specific ways and the extent to which the Veteran's back and neck disabilities interfere with her ability to work. 4. Following completion of the first and second instructions above, arrange for the Veteran to undergo a VA examination to determine the nature and extent of the neurological manifestations of her service-connected back and neck disabilities. The Veteran's claims folder should be made available to the examiner, and the examiner is requested to review the claims folder in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and all findings should be reported in detail. After reviewing the claims folder, obtaining a history of complaints from the Veteran, and conducting a thorough examination of the Veteran, the examiner should identify any neurological findings related to her service-connected back and neck disabilities, to include any findings associated with the upper and lower extremities and any bowel and bladder impairment. The examiner should fully describe the extent and severity of those symptoms. For any disabilities of the upper and lower extremities, the examiner should specifically identify the exact nerves that are affected and describe the severity of disability including any paralysis that is found. The examiner should also describe the specific ways and the extent to which the Veteran's neurological disabilities interfere with her ability to work. 5. After the development requested above has been completed, and after any additional development deemed appropriate, again review the record and readjudicate the claims, including the claim of entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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 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). _________________________________________________ TANYA SMITH 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).