Citation Nr: 1632585	
Decision Date: 08/17/16    Archive Date: 08/24/16

DOCKET NO.  12-01 090	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for degenerative cervical spine changes with muscular neck pain.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 7, 2011.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Tracie N. Wesner, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from September 1979 to September 1983 and in the United States Army from February 1987 to May 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  In his November 2011 Notice of Disagreement, the Veteran reported that his service-connected cervical spine and related disabilities caused him to be unemployable.  In a June 2013 rating decision, the RO granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective November 7, 2011.  The Veteran did not challenge the effective date assigned for the grant of TDIU; however, the Board notes that the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating.  As such, the issue of entitlement to TDIU for the period prior to November 7, 2011 is part of the Veteran's appeal.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).    

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Veteran contends that his cervical spine disability has worsened since his most recent VA examination in June 2010.  See July 2016 Appellate Br. at 2.  A new examination should be provided on remand.  Snuffer v. Gober, 10 Vet. App. 400 (1997).  Additionally, all outstanding VA and relevant private medical records should be associated with the claims file.  Sullivan v. McDonald, 815 F.3d 786 (2016); 38 C.F.R. § 3.159(c).  The issue of entitlement to a TDIU for the period prior to November 7, 2011 is also remanded as inextricably intertwined with the increased rating issue.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA medical records dated since April 2009 to the present.  The Board notes that the Veteran has been treated at the VA Community Based Outpatient Clinic in Massena, New York and the VA Medical Center in Syracuse, New York.  Please note that a notation of an "electronic review of records," as in the November 2011 Statement of the Case, is not sufficient.  Instead, all records must be associated with the claims file.  

2.  Ask the Veteran to identify any private medical care providers who treated him for his cervical spine disability and related conditions since April 2009.  After securing any necessary authorization, obtain records from any identified providers.

3.  Ask the Veteran to complete the VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability in order to obtain information concerning his employment history prior to November 7, 2011.

4.  Schedule the Veteran for a VA examination to determine the current nature and severity of his cervical spine and related disabilities.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.  

Full range of motion testing must be performed where possible.  The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  

All findings should be reported in detail.  A complete rationale shall be given for all opinions and conclusions expressed.

5.  After completing the above development, including any additional development that may be warranted (e.g., whether referral for extraschedular consideration is warranted for the TDIU portion of the claim), readjudicate the appeal.

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).

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).



_________________________________________________
S. BUSH
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).