Citation Nr: 1617761 Decision Date: 05/03/16 Archive Date: 05/13/16 DOCKET NO. 07-38 111A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating greater than 10 percent prior to April 3, 2009, and greater than 20 percent from April 3, 2009, for the thoracolumbar spine disability. 2. Entitlement to an initial disability rating greater than 10 percent from June 3, 2011, for paralysis of the left lower extremity sciatic nerve associated with the thoracolumbar spine disability. 3. Entitlement to an initial disability rating greater than 10 percent prior to June 3, 2011, and greater than 30 percent from June 3, 2011, for headaches. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to April 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the appeal, the Veteran's file was transferred to the RO in Houston, Texas, and the file was transferred back to the RO in St. Petersburg, Florida in June 2013. In March 2014, the Board remanded the case for further evidentiary development, and the case is again before the Board for further appellate proceedings. The Board acknowledges that in March 2014, the Board remanded the issue of entitlement to a disability rating greater than 20 percent from April 3, 2009 for the thoracolumbar spine disability. The Board notes that in the July 2011 supplemental statement of the case, the RO increased the disability rating to 20 percent from April 3, 2009, and continued the 10 percent rating prior to April 3, 2009 for the thoracolumbar spine disability. Because this increase does not constitute a full grant of the benefits sought, and because the Veteran has not expressly stated that he is satisfied with this 10 percent evaluation prior to April 3, 2009, the issue of entitlement to a disability rating greater than 10 percent prior to April 3, 2009 is on appeal and is before the Board for further appellate proceedings. See generally AB v. Brown, 6 Vet. App. 35, 38-39 (1993). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed. In August 2013, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is associated with the claims file. During the appeal period, although the Veteran had a total evaluation for the single service-connected cervical spine disability during the periods from February 15, 2006 to February 28, 2006, and from December 30, 2009 to March 31, 2010, the Veteran did not have additional separate service-connected disabilities that had a combined rating of 60 percent or more. Therefore, the issue of entitlement to special monthly compensation at the housebound rate is not raised by the record and is not before the Board at this time. See 38 C.F.R. § 3.350 (2015); see generally Akles v. Derwinski, 1 Vet. App. 118 (1991). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record reflects that the last time the AOJ reviewed the evidence and adjudicated the issue of entitlement to a disability rating greater than 10 percent for the thoracolumbar spine prior to April 3, 2009 was in the July 2011 supplemental statement of the case. The record also shows that in September 2013, the Veteran submitted additional private treatment records from the Florida Spine Clinic relevant to the issue of entitlement to an increased rating for the thoracolumbar spine disability, which includes treatment records dating prior to April 3, 2009. The record shows that the AOJ has not reviewed and considered these private treatment records and that the AOJ has not adjudicated the issue of an increased rating for the thoracolumbar spine since July 2011. See July 2011 and June 2015 supplemental statements of the case. Because this evidence is relevant to the issue of entitlement to increased compensation for the thoracolumbar spine disability on appeal and was received prior to certification of the appeal to the Board, remand is warranted for the AOJ to review this evidence and issue a supplemental statement of the case. See 38 C.F.R. §§ 19.31, 19.37(a) (2015). The Veteran was last afforded a VA examination regarding the thoracolumbar spine disability in September 2014. The Veteran reported a flare-up about a month ago for which he was treated, but the VA examiner stated that any additional functional impairment due to pain, weakness, fatigability, lack of endurance, or incoordination during a flare-up or when the spine is used repeatedly over a period of time is impossible to determine without speculating. The September 2014 VA examiner added that range of motion loss due to pain on use or during flare-up is impossible to measure or quantify without speculating. On the other hand, the examiner performed range of motion testing and reported that there was no objective evidence of painful motion on testing, and yet the examiner also noted that the Veteran's functional impairment of the thoracolumbar spine is due to such factors as less movement than normal and pain on movement. This examination report is internally inconsistent, and the examiner fails to provide reasons for why he cannot opine as to additional functional limitations due to flare-ups and due to repetitive use over time without speculation. The Board notes that the Veteran's February 2006 claim for increased compensation noted that he has bilateral leg pain and tingling in his toes. There is also medical evidence in the record tending to show that the Veteran may have had objective neurological impairment(s) associated with the thoracolumbar spine disability prior to June 3, 2011. See e.g., May 2006 private treatment note by Dr. Jobe (showing impression of left sided T7-8 radiculopathy); January 2006 to June 2013 private treatment records from Florida Spine Institute (showing assessments of thoracic or lumbosacral neuritis or radiculitis); January 2007 VA examination (showing decreased sensation in the left leg at T8 and T9). The Veteran was last afforded a VA examination regarding neurological impairment associated with the thoracolumbar spine in September 2014. Though the VA examiner reported that the Veteran's peripheral nerves were all normal, the Board notes that no electrodiagnostic testing was performed and that the VA examiner was a physician's assistant. It is unclear whether a physician's assistant has the requisite medical expertise to opine as to neurological matters, to include the nerve roots involved in a neurological abnormality of the peripheral nerves. Furthermore, this assessment conflicts with the other medical evidence of record that tends to show the presence of objective neurological abnormality associated with the thoracolumbar spine disability. For these reasons, the Veteran should be afforded a new VA examination to determine the severity of the Veteran's thoracolumbar spine disability, to include a medical opinion regarding any neurological impairment associated with the thoracolumbar spine disability during the entire appeal period. 38 C.F.R. § 4.2. The Veteran was last afforded a VA examination regarding the nature and severity of his headaches in September 2014. Though the examiner noted that the Veteran generally has sharp, throbbing, and aching headaches, the examiner also noted that the Veteran has episodes of more severe pain requiring narcotics, and that when headache severity increased, the Veteran has photophobia. However, when the examination report prompts the examiner to indicate the duration of the Veteran's head pain, the examiner simply states "see history," which does not indicate the duration of the Veteran's headache attacks, to include his episodes of more severe pain with photophobia. Further, the examiner stated that the Veteran does not have characteristic prostrating attacks of migraine/ non-migraine pain; however, given the prior indication that the examiner based his findings only on the Veteran's subjective history, the probative value of this finding is unclear. The examiner's finding of no characteristic prostrating attacks is especially troubling considering the Veteran's prior reports that when he has his severe headaches, he has to stay in bed in a dark room. See August 2011 VA examination; August 2013 Board hearing transcript at p. 5. The September 2014 examiner also did not provide information as to the frequency of the Veteran's headache attacks, to include those episodes of greater severity. Furthermore, the examiner's opinion that the Veteran's headaches do not impact his ability to work is apparently based on the fact that the Veteran is no longer working. For these reasons, the September 2014 VA examination regarding the severity of headaches does not provide enough detail for rating purposes, and a new VA examination is warranted to determine the same. 38 C.F.R. § 4.2. Notably, the criteria for evaluation of headaches include consideration of occupational impairment. Further, the Veteran has reported that his headaches at least in part impact his ability to work. See SSA Disability Report. Therefore, the Board remands the issue of entitlement to increased compensation for headaches for a new VA examination as intertwined with the matter of TDIU. The Veteran should also be afforded a VA general examination regarding TDIU. Furthermore, since the Board's prior remand in March 2014, a copy of an email associated with the claims file shows that the Veteran may be currently enrolled in VA Vocational Rehabilitation and Employment Services. See July 2014 email regarding claim for TDIU. Enrollment in the same may result in the creation of records relevant to Compensation claims. Basic eligibility in VA vocational rehabilitation services requires an initial evaluation to determine whether a vocational goal is feasible. 38 C.F.R. §§ 21.40, 21.50-53. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the Veteran's vocational rehabilitation records and any records pertaining to a claim for the same should be associated with the claims file. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he submit or authorize the release of any outstanding private medical records relevant to the thoracolumbar spine disability and any allegedly associated neurological impairment, headaches, and alleged unemployability, to include the following: a. Updated treatment records from Dr. Hanna from June 2015 to present. b. Any outstanding treatment records from Dr. Vollbracht. c. Any other private treatment provider. All attempts to fulfill this development should be documented in the claims file. 2. Obtain the Veteran's VA vocational rehabilitation records and any records pertaining to a claim for vocational rehabilitation and associate them with the claims file. All attempts to obtain these records must be documented in the file. 3. Obtain outstanding relevant VA treatment records. 4. Afterwards, schedule the Veteran for VA examinations with physicians with appropriate expertise to determine the current nature and severity of (a) headaches, (b) the thoracolumbar spine disability, to include any associated neurological abnormality associated therewith, and (c) with regards to TDIU. Make the claims file available to the examiner for review of the case. Regarding headaches: the examiner is asked to address the current nature and severity of the Veteran's headaches, to include the frequency and duration of any characteristic prostrating attacks as well as whether there is any economic inadaptability resulting therefrom. Regarding the thoracolumbar spine and any associated neurological impairment(s): After performing all necessary testing, including neurological testing, the examiner is asked to address the current nature, severity, and all symptoms of thoracolumbar spine disability. For purposes of the opinion, the examiner is specifically asked to address the following: (a) Note the extent of limitation of the thoracolumbar spine in terms of degree of limited range of motion. The examiner should also set forth the extent of any functional loss present due to weakened movement, excess fatigability, incoordination, or pain on use. Any additional impairment on use or in connection with any flare-up should be described in terms of the degree of additional range-of-motion loss. (b) Indicate the frequency and duration of any incapacitating episodes in the past 12 months. Note that an incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (c) After review of the record, provide an opinion as to each objective neurological abnormality associated with the thoracolumbar spine disability at any point during the entire appeal period (February 2006 to present). Indicate the nerve roots involved for each objective neurological impairment found and the severity of the symptoms (e.g., mild, moderate, severe). If the examiner finds that the Veteran does not have an objective neurologic abnormality that is associated with the service-connected disability, the examiner should explain why. For purposes of this opinion, the examiner's attention is invited to the medical evidence in the record tending to show that the Veteran may have had objective neurological impairment(s) associated with the thoracolumbar spine disability during the entire appeal period, to include the period prior to June 3, 2011. See e.g., May 2006 private treatment note by Dr. Jobe (showing impression of left sided T7-8 radiculopathy); January 2006 to June 2013 private treatment records from Florida Spine Institute (showing assessments of thoracic or lumbosacral neuritis or radiculitis); January 2007 VA examination (showing decreased sensation in the left leg at T8 and T9). (d) After performing all necessary testing, the examiner is asked to address whether there is loss of use of either lower extremity due to service-connected disability. In rendering this opinion, the examiner should provide an objective description of remaining function, a quantitative assessment of strength, and the level of pain that affects use. Functions that may be considered include whether there is lack of balance; lack of propulsion; the inability to ambulate; the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion; complete foot drop; weakness; muscle atrophy and use; the ability of a foot to support the Veteran's weight. The examiner's attention is invited to the Veteran's use of a cane and walker and the Veteran's reports of lack of balance in his left foot and reports of falls. Regarding TDIU: Interview the Veteran as to his education, training, and work history. Assess the impact of each of the Veteran's service-connected disabilities (see the list from the February 2013 rating decision) and the impact thereof together on his ability to perform physical and mental tasks in a work-like setting. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached in a type-written report. 5. Afterwards, review all additional evidence since the AOJ's last review regarding the issue of entitlement to a disability rating greater than 10 percent for the thoracolumbar spine disability prior to April 3, 2009, including private treatment records submitted by the Veteran in 2013 and 2015. Then, adjudicate the claims on appeal, and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide 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). _________________________________________________ A. C. MACKENZIE 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).