Citation Nr: 1619236 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 10-48 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to an initial disability rating greater than 10 percent prior to March 15, 2013, and a disability rating greater than 20 percent from March 15, 2013, for degenerative disc disease of the lumbar spine (lumbar spine disability). 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 August 1999 to January 2004. He also served on active duty for training from June 10, 1997 to August 28, 1997. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, the Board remanded the case for further evidentiary development, and the case is again before the Board for further appellate proceedings. The Veteran was afforded a Board hearing in July 2012 that was presided over by a Veterans Law Judge who is no longer employed by the Board. In March 2016, the Board sent the Veteran a letter that provided him the opportunity to testify at another hearing and requested that the Veteran respond within 30 days from the date of the March 2016 letter. To this date, the Veteran has not responded, and therefore the Board concludes that the Veteran does not wish for another hearing and will proceed accordingly. Records in the Virtual VA paperless claims processing system and Veterans Benefits Management System have been reviewed, to include a transcript of the July 2012 Board hearing presided over by a Veterans Law Judge who is no longer employed by the Board. In a May 2013 rating decision, the RO increased the rating for the lumbar spine disability to 20 percent, effective from March 15, 2013. As this increase does not constitute a full grant of the benefits sought, this issue is before the Board for further appellate proceedings. See generally AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Board notes that the Board does not have jurisdiction over the issue of an increased rating for right lower extremity radiculopathy because the Veteran did not submit a notice of disagreement as to the May 2013 rating decision that granted entitlement to service connection and assigned a separate evaluation for the right lower extremity radiculopathy. See also May 2013 notice of determination letter (providing notice to the Veteran of his appellate rights). A request for a TDIU due to service-connected disability, when expressly raised by a claimant or reasonably raised by the record, is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)). The Board acknowledges that the Veteran's lumbar spine disability impacts his ability to work. See e.g., March 2013 VA examination. However, the evidence shows that the Veteran is employed, and there is no indication in the record that the Veteran is unable to obtain or follow a substantially gainful occupation due to his service-connected disability. See e.g., March 2013 VA examination (Veteran reported that he works at the railroad). Accordingly, a TDIU has not been raised by the record and is not before the Board at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was last afforded a VA examination regarding the lumbar spine in May 2013. Since the May 2013 VA examination, the Veteran has reported worsening of symptoms and he requests a new VA examination. See November 2015 Appellant's Post-Remand Brief. Because the Veteran has not been afforded a VA examination since May 2013, and based on reports of worsening symptoms, the Board finds that a new VA examination is warranted to determine the current nature and severity of the Veteran's lumbar spine disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Please contact the Veteran and request that he submit or authorize the release of any outstanding treatment records, VA or non-VA relevant to the lumbar spine, specifically to include the following: (a) updated private treatment records from Dickson Orthopedics from February 2011 to present. (b) any other relevant private treatment provider. Attempts should be made to obtain identified records. All attempts to fulfill this development should be documented in the claims file. 2. Please obtain all outstanding relevant VA treatment records. 3. After completing the above development, please schedule the Veteran for a VA examination to determine the nature and severity of the lumbar spine disability. Forward the claims file to the examiner for review of the case (including Virtual VA and VBMS). After performing all necessary testing, please address the current nature, severity, and all symptoms of the Veteran's lumbar spine disability. For purposes of the opinion, please include the following: (a) Please note the extent of limitation 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. If such is not possible without resorting to speculation, please explain why this is the case. The examiner's attention is invited to the Veteran's report that he has painful motion, weakness, and flare-ups. See November 2015 Appellant's Post-Remand Brief. (b) Please 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) Please provide an opinion as to each objective neurological abnormality other than the already diagnosed, service connected right lower extremity radiculopathy associated with the lumbar spine disability. Indicate the nerve roots involved for each objective neurological impairment found and the severity of the symptoms (e.g., mild, moderate, severe). The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached 4. Thereafter, readjudicate the claim 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 matter 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).