Citation Nr: 1739969 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 13-18 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine (low back disability). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1965 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record on appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the 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. The Board finds that the evidence reasonably raises a claim for TDIU pursuant to the holding in Rice and added that issue to the cover page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Low Back Disability The Board finds that the Veteran's claim for an increased rating must be remanded in order to afford him a contemporaneous VA examination in order to assess the current nature and severity of his low back disability. In this regard, the record reflects that the Veteran was most recently afforded a VA examination to determine the severity of such disability in May 2010. Since that time, the Veteran has alleged an increase in the severity of his symptoms. Specifically, at the April 2017 Board hearing, the Veteran reported having been prescribed bed rest by a physician and other back symptomatology that was not reported at the May 2010 examination. Additionally, at the hearing he and his representative requested a new examination in light of the fact that the previous examination was performed on a day when the Veteran's low back symptomatology was relatively mild. In light of the allegations of worsening symptoms and the request for a new examination, the Board finds that remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his low back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board further notes that the Court recently made a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Upon a review of the examination conducted in May 2010, it does not appear that such testing was conducted, or that the VA examiner explained why such testing could not be conducted or was not necessary. Therefore, such testing should be accomplished in connection with the examination conducted on remand. Additionally, the examiner will be requested to offer a retrospective medical opinion as to the findings included in the prior examination conducted during the appeal period. TDIU Regarding the TDIU issue, at the April 2017 hearing the Veteran reported he was self-employed making arts and crafts and that he believed his service-connected back disability impaired his ability to work. Notably, the Veteran has routinely reported being self-employed during the appeal and credibly reported limits on his ability to walk, stand, and sit due to his service-connected back disability. Additionally, the May 2010 VA examiner opined that the Veteran's low back disability would have a significant impact on his ability to work. In light of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that the issue of unemployability has at least been raised such that appropriate VCAA notice and an application form should be provided. Outstanding Records The Veteran reported at the April 2017 hearing that he received chiropractic treatment from a clinic in Truth or Consequences, New Mexico, and that this chiropractor regularly prescribed bed rest. The Veteran subsequently submitted some records from a chiropractor based in Las Cruces, New Mexico, Dr. Richardson, but said records are mostly billing notations and do not contain information related to prescribed bed rest. The record also contains limited records from a chiropractor in Truth or Consequences, Dr. Sutherland, but such are dated in and around 2008. On remand, the Veteran should be provided with an opportunity to identify and provide a release for Dr. Richardson, Dr. Sutherland, and any other private treatment providers who have treated him for his low back disability. Additionally, in a June 2015 submission, the Veteran reported that he is in receipt of Social Security Administration (SSA) benefits; it is unclear whether such benefits are based on disability. As any records in regard to a disability determination may be pertinent to the instant appeal, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Furthermore, while the Veteran denied receiving VA treatment for his back disability at the April 2017 Board hearing, the available VA treatment records do contain information relevant to the Veteran's low back disability and in a July 2015 submission, the Veteran's representative requested that VA obtain records from a VA treatment provider. Thus, relevant ongoing VA medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014). Accordingly, the claim is REMANDED for the following action: 1. Send the Veteran appropriate notice that advises him about the information and evidence needed to substantiate a claim for a TDIU. In addition, ask him to fully complete an Application for Increased Compensation based on Unemployability (VA Form 21-8940). 2. The AOJ should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from Dr. Sutherland, Dr. Richardson, and/or any previously unidentified private medical providers who have provided treatment for his low back disability. After receiving any necessary authorization forms, 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. 3. Obtain and associate with the claims folder any relevant VA treatment records dated since March 2015. 4. 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). 5. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected low back disability. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should explain the reasons for the conclusions reached. The examiner should identify the nature and severity of all manifestations of the Veteran's low back disability. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's low back disability on his daily activities and employability. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-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. The examiner is also requested to review the VA examination containing range of motion findings pertinent to the Veteran's low back disability conducted in May 2010. With regard to the examination findings, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing. If the examiner is unable to do so, he or she should explain why. The examiner should clearly determine whether the Veteran has any associated neurological impairment, to specifically include radiculopathy of either lower extremity, bladder incontinence, bowel incontinence, and/or erectile dysfunction, and comment on the severity of any such disorders, if any, in terms of mild, moderate, moderately severe, or severe incomplete paralysis of the affective nerve. In this regard, the examiner should specifically consider and discuss the Veteran's April 2014 diagnosis of peripheral neuropathy that was possibly related to chemotherapy he was undergoing at that time. If there is complete paralysis of a nerve affected by the Veteran's back disability, the examiner must so state. The examiner should also determine whether the Veteran has any physician prescribed periods of bed rest due to his back disability. Any opinion offered should be accompanied by a complete rationale. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for an increased rating for his low back disability should be readjudicated based on the entirety of the evidence and the AOJ should adjudicate the issue of entitlement to a TDIU due to the Veteran's service-connected disabilities, to include consideration of whether referral on an extraschedular basis is warranted. If the claims are denied, furnish a supplemental statement of the case and give an appropriate opportunity to respond before the issues are returned to the Board. 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). _________________________________________________ C. CRAWFORD 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) (2016).