Citation Nr: 1702011 Decision Date: 01/26/17 Archive Date: 02/09/17 DOCKET NO. 12-27 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating higher than 50 percent for a lumbar spine disability residuals of compression fracture L3 with deformity, including degenerative disc disease of the lumbar spine with degenerative spondyloarthrits, herniated disk at L1- L2, and foraminal narrowing at L4-5, S1. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Such issue has been added accordingly. A hearing was held in May 2016 before Kathleen K. Gallagher, a Veterans Law Judge, sitting in St. Petersburg, Florida, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c), (e)(2) and who is rendering the determination in this case. The Veteran presented testimony on the claim for entitlement to an increased rating for a lumbar spine disability, as well as the claim for entitlement to a TDIU. A transcript of the hearing testimony is in the claims file. The issue of clear and unmistakable error (CUE) in October 1972, and January1975 rating decisions was raised by the record in an April 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND At the outset the Board finds that there are outstanding VA treatment records which may contain information and evidence relevant to the Veteran's claims. In this regard, the Veteran testified that he was being treated at the VA medical center in Miami, Florida, for his lumbar spine disability. The medical evidence of record, however, dates only from September 2013 and prior thereto. When an increase in the level of a disability is at issue, the primary concern is the present level of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). To ensure that there is an adequate record upon which to decide the Veteran's claim, the Board finds that a remand is necessary to obtain any updated VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran's lumbar spine disability is currently rated as 50 percent disabling. The current General Rating Formula for Diseases and Injuries of the Spine provides for separate orthopedic and neurological ratings for spinal disabilities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2016). At the May 2016 personal hearing the Veteran reported additional symptoms associated with the service-connected lumbar spine, including radicular symptoms of the lower extremities. There is evidence in the claims file that supports a finding of lumbar radiculopathy, including the VA examination report of June 2010 which noted that straight leg raising test was positive in the left leg for sciatic type of pain. Unfortunately, there is insufficient evidence identifying the nerves affected and the severity of any neurological manifestations. As the Veteran may be entitled to a separate rating for neurological manifestations of his service-connected lumbar spine disorder, and as the last VA compensation examination to evaluate the Veteran's lumbar spine was conducted over six years ago, the Board finds that remand for a new VA examination is warranted. Caffrey v. Brown, 6 Vet. App. 377 (1994). Next, the Veteran contends that he is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities, specifically his lumbar spine disability and his service-connected psychiatric disorder. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16 (a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities resulting from a common etiology or a single accident will be considered as one disability for TDIU purposes. Id. Here, during the entirety of the appellate period, the Veteran has been in receipt of a 50 percent rating for the lumbar spine disorder and a 10 percent rating for anxiety neurosis. Service connection is also in effect for a vague small scar of the upper lip, mandibular fracture, and loss of five front teeth, rated as noncompensably disabling, respectively. He thus has a combined rating of 60 percent since February 2010, the date of his claim for an increased rating for his lumbar spine disability. See 38 C.F.R. § 3.400 (o) (2016) (concerning effective dates for increased ratings). See also 38 C.F.R. §§ 4.25 (2016) (Combined ratings table). Moreover, in awarding service connection for the lumbar spine disability and anxiety neurosis, the RO effectively found that these disabilities arose at the same time and share a common etiology, namely the October 1969 in-service automobile accident. See August 1971 Rating Decision. Additionally, the medical evidence of record suggests a relationship between these conditions. See, e.g., May 2011 VA examination (opining that the Veteran's depression was the result of his service connected back injury and was a later development of his generalized anxiety disorder). Accordingly, these conditions are considered a single disability for TDIU purposes. See 38 C.F.R. § 4.16 (a). The Veteran thus meets the schedular threshold for TDIU consideration, as his disabilities resulting from a common etiology are rated at 60 percent. See 38 C.F.R. § 4.16 (a). The question remains whether these service-connected disabilities, in and of themselves, preclude the Veteran from securing or following a substantially gainful occupation. The Board finds that, on remand, the Veteran should be afforded a VA examination and opinion to ascertain the impact of his service-connected disabilities, currently the lumbar spine disability, anxiety neurosis, a vague small scar of the upper lip, mandibular fracture, and loss of five front teeth, have on his employability. Accordingly, the case is REMANDED for the following action: 1. Request updated VA treatment records dated since September 2013, including treatment records from the VA community based outpatient clinic in Miami, Florida. If any requested records are not available, the Veteran should be notified of such. 2. After completing the foregoing development, the appellant should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file must be made available to and be reviewed by the examiner. The examiner is requested to address the following: a) Provide the range of motion of the lumbar spine in degrees during active motion, passive motion, weight-bearing, and nonweight-bearing. State whether there is any form of ankylosis. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). b) Describe all neurological manifestations and symptomatology and offer an opinion as to whether the Veteran has any separately ratable neurological disability (in addition to orthopedic disability) as a manifestation of the service-connected lumbar disc disease. The examiner should discuss the severity of any radiculopathy or neuropathy found to be present in the lower extremities and indicate whether the degree of impairment is best characterized as mild, moderate, moderately severe, or severe. c) Provide findings responsive to the criteria for rating intervertebral disc syndrome (IDS) and specifically, comment on the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician), if there are any, in the last 12-month period. d) The examiner should address the impact the Veteran's lumbar spine disability has on his ability to obtain or maintain gainful employment. 3. Then, provide the Veteran with an appropriate VA examination with respect to his TDIU claim. The claims file should be made available to the examiner, and all appropriate tests should be performed. The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities (lumbar spine disability and associated neurological manifestations, if any, anxiety neurosis, a vague small scar of the upper lip, mandibular fracture, and loss of five front teeth), alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation, and if so, when he was rendered unable to secure or follow a substantially gainful occupation. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Then, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).