Citation Nr: 1633953 Decision Date: 08/29/16 Archive Date: 08/31/16 DOCKET NO. 14-26 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for lumbar strain with degenerative disc disease (DDD). 2. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran had active service from September 1969 to September 1971 and from February 1978 to October 1995. He served in the Republic of Vietnam, during the Vietnam Era, and is the recipient of the Combat Infantryman's Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). REMAND By way of a brief background, the Veteran initiated a claim for increased ratings for his service-connected PTSD and lumbar spine disabilities, as well as a claim for entitlement to a TDIU in September 2010. Thereafter, the RO denied entitlement to increased ratings as well as a TDIU rating in a June 2011 rating decision. In April 2012 the Veteran initiated an appeal as to these determinations. Then, in a VA Form 21-4138 Statement in Support of Claim submitted the following month, the Veteran intimated that his disabilities were worse than shown on VA examinations, and also stated he did not believe all the pertinent evidence was considered. In this respect, the Board notes the Veteran last underwent a VA examination to assess the severity of his service connected lumbar spine and PTSD disabilities in December 2010. Where the evidence indicates a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Based on the foregoing, the Board must remand the issues of entitlement to increased ratings for the Veteran's lumbar spine and PTSD disabilities. The issue of entitlement to TDIU is inextricably intertwined with those issues, as a medical opinion addressing the Veteran's functional impairments resulting from all service-connected disabilities must be obtained. This follows, because at the time of the Veteran's December 2010 VA examinations, neither examiner provided an opinion relative to the cumulative effects the Veteran's service-connected disabilities had on his ability to obtain and maintain substantially gainful employment. The Board also observes that in December 2010 the Social Security Administration (SSA) indicated the Veteran's complete SSA file was being provided on a compact disc (CD); however, it does not appear the RO has associated the contents of that CD with the record. Further, the Veteran has provided the SSA's administrative determination showing he was found unable to obtain and maintain substantially gainful employment, at least in part, as a result of his service-connected disabilities. As such, these records are clearly probative. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In this respect, the Board notes the most recent outpatient treatment notes from the Salisbury VAMC are dated in January 2012; however, these notes show the Veteran reported more frequent episodes of back flare-ups, as well as radiating pain into his bilateral hips in August 2011. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or AMC should undertake appropriate development to obtain and associate with the record any outstanding records pertinent to the Veteran's claims, to specifically include all records from the Social Security Administration, as well as any ongoing treatment records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the Veteran should be afforded VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected lumbar spine and PTSD disabilities. The electronic records should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or AMC must ensure that all information required for rating purposes is provided. 3. In addition, the RO or AMC should obtain a medical opinion from an examiner with sufficient expertise to determine the impact each of the Veteran's service-connected disabilities have on his employability. The electronic records should be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected PTSD and lumbar spine disability. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. In addition, the examiner should comment as to whether there is a 50 percent or better probability that the Veteran's service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. A complete rationale for the opinion must also be provided. In this regard, the examiner must discuss and consider the Veteran's competent lay statements, and assume such statements are credible for purposes of the opinion. 4. The RO or AMC should also undertake any other development it determines to be warranted. 5. Finally, the RO or AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. REYNOLDS 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).