Citation Nr: 1620402 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 12-13 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2016, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. Rice, 22 Vet. App. at 453-54. As the Veteran testified at his March 2016 Board hearing that he had been unemployed for the prior three years due to his back disability, the Board finds that the issue of entitlement to a TDIU has been raised by the record. Therefore, it is has been included on the title page of this decision. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his back disability. In this regard, the Board observes that he was last examined by VA in February 2010. However, at his March 2016 Board hearing, the Veteran testified to increased pain and stiffness. He also indicated the he experienced exacerbations of his back pain and that such disability had been progressively worsening over the last four to five years. The Veteran further indicated that his range of motion had decreased, he experienced spasms in the back, and had radiating pain, tingling, and numbness down his lower extremities. Similarly, he indicated that he believed his back disability resulted in erectile dysfunction. Therefore, as the evidence suggests that the Veteran's back symptomatology may have increased in severity since the February 2010 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board finds that a remand is also necessary in order to obtain outstanding records from the Social Security Administration (SSA). In this regard, the Veteran testified at his March 2016 Board hearing that he had previously been denied disability benefits from such agency. Accordingly, it appears very likely that the SSA holds records which, although not binding on the VA, are relevant to the Veteran's claims, and so VA is obligated to attempt to obtain those records. See 38 U.S.C.A. §5103A(c)(1)(C); 38 C.F.R. §3.159(c)(2); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Furthermore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his back disability. Thereafter, any identified records, to include those pertaining to his retraining through VA's vocational rehabilitation program and those from the VA Biloxi, Mississippi, dated from December 2011 to the present, should be obtained for consideration in the Veteran's appeal. Finally, as indicated in the Introduction, the issue of entitlement to a TDIU has been raised by the record. However, the Veteran's TDIU claim has not been adjudicated in the first instance by the AOJ. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the Board must remand the Veteran's TDIU claim for adjudication by the AOJ in the first instance and such action will also allow for the AOJ to provide the Veteran with a Veterans Claims Assistance Act of 2000 (VCAA)-compliant notice as to a TDIU and request that he complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice that informs him of the evidence and information necessary to establish entitlement to a TDIU. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include pertaining to his retraining through VA's vocational rehabilitation program and those from the VA Biloxi, Mississippi, dated from December 2011 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. The Veteran should be scheduled for an appropriate VA examination so as to ascertain the nature and severity of his service-connected back disability. The record, to include a copy of this remand, should be reviewed by the examiner. The examiner must also discuss the Veteran's medical history, symptoms, and current complaints, and document the Veteran's disclosures in the examination report. All indicated tests (including range of motion and appropriate radiology testing) should be conducted, and all findings reported in detail. The examiner is then specifically requested to advise as follows: a) provide range of motion findings, in degrees, of the lumbar spine, to include forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. b) state whether there is any objective evidence of pain on range of motion; and, if there is pain on motion, identify the specific excursion(s) of motion accompanied by pain (in degrees); the point in range of motion testing when pain begins and ends (in degrees); and the point at which pain begins and ends after repetitive motion, in degrees. c) state whether there is any incoordination, weakened movement and excess fatigability on use of the lumbar spine; and, if possible, assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion lost. d) state whether there would be additional limits on functional ability after repeated use of the lumbar spine; and during flare-ups (if the Veteran describes flare-ups). Any additional functional loss should be expressed, in degrees, of the additional limitation of motion in the affected plane or planes. e) describe the orthopedic manifestations associated with the service-connected lumbar degenerative disc disease, including the presence or absence of muscle spasm; guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; need for assistive device, etc.. f) ascertain whether the Veteran has incapacitating episodes of intervertebral disc syndrome and describe the frequency of such episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. g) describe the nature and severity of all neurological manifestations, including radiculopathy, erectile dysfunction, and bowel and/or bladder problems, associated with the service-connected lumbar degenerative disc disease. h) discuss the impact the Veteran's back disability on his activities of daily living and employability. A rationale for all opinions offered should be set forth in the examination report. 5. After completing the above actions, to include any other development as may become indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the issue of entitlement to a rating in excess of10 percent for degenerative disc disease of the lumbar spine, and adjudicate the issue of entitlement to TDIU based on the entirety of the evidence. In adjudicating the former claim, the AOJ should consider whether separate ratings are warranted for any objective neurologic abnormality associated with the Veteran's back disability pursuant to 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. JAEGER 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).