Citation Nr: 1745515 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 08-37 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease with degenerative spondyloarthritis, status post discectomy L5-S1, with history of sciatica (herein back disability). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to January 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded the Veteran's claims in August 2012, December 2014 and January 2017. Additional VA treatment records were associated with the Veteran's claims file after the most recent June 2017 Supplemental Statement of the Case (SSOC). It appears that these records are duplicative of prior obtained records. In any event, as the Veteran's claims are being remanded, the Agency of Original Jurisdiction (AOJ) will have the opportunity to consider such documents in the first instance on remand. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Back Disability During the course of the appeal, the Veteran was afforded VA examinations for his back disability in August 2007, July 2015 and January 2017. The United States Court of Appeals for Veterans Claims has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2017) states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The prior VA examinations did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information pursuant to Correia. In addition, the January 2017 VA examination report stated that the Veteran "continued to receive treatment within VA healthcare system" and quoted a December 2016 VA treatment note that referenced evaluation of the Veteran's low back. In addition, in a January 2017 statement the Veteran referenced that he was scheduled for a February 2017 MRI at a VA hospital. The most recent VA treatment records of record are dated in July 2016. As it appears that there are outstanding VA treatment records related to treatment for the Veteran's back disability, such must also be obtained on remand. Also, in March 2017 the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)) and listed treatment from provider J.K. from March 2016 to March 2017. The AOJ attempted to obtain records from this provider, but was informed by the provider in March 2017 that no records were found. It does not appear that the Veteran was notified of this and pursuant to 38 C.F.R. § 3.159(e)(2017) he must be informed of such on remand. TDIU The Veteran's current combined disability rating is 50 percent. The Board notes that a schedular TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability rated at least 60 percent or multiple service-connected disabilities with a combined rating of at least 70 percent (with at least one of those disabilities rated at least 40 percent). See 38 C.F.R. § 4.16(a) (2017). When the schedular TDIU requirements are not met, however, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b) (2017). In this regard, the Board notes that neither the AOJ nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). Rather, the regulation requires that, in cases of veterans who are unemployable by reason of service-connected disabilities and who fail to meet the threshold percentage requirements discussed above, the case is to be submitted to VA's Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b) (2017). In this case, as noted above, the Veteran's back disability increased rating claim is being remanded for further development, which may impact the Veteran's eligibility for a schedular TDIU. As such, the TDIU claim is inextricably intertwined with the back disability increased rating claim being remanded and must therefore also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In addition, following the requested development related to the Veteran's back disability increased rating claim, in the event that the Veteran still does not meet the TDIU schedular criteria, the Board finds that submission to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) (2017) is warranted. This is warranted because evidence of record indicated that the Veteran's service-connected disabilities impacted his ability to secure and follow a substantially gainful occupation. See March 2011 Social Security Administration Disability Determination and Transmittal Form (noting that the Veteran was disabled beginning in July 2009 and listing a primary diagnosis that was a non-service connected disability and a secondary diagnosis of "back disorder (disc/degenerative)"), June 2011 VA Counseling Record - Narrative Report (with a VA Rehabilitation Counselor stating that "the [V]eteran's service-connected [back disability] and limitation of motion of the ankle impair the [V]eteran's ability to prepare for, obtain, or retain employment consistent with abilities, aptitudes, and interests" and that the Veteran's "back and ankle conditions prevent him from performing job duties requiring prolonged walking, standing, sitting, running, climbing, bending, and lifting and carrying heavy items"), July 2015 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) (stating that the Veteran's back disability impacted his ability to work and that "[t]his condition will prevent any physical or sedentary job requiring prolonged or repetitive sitting, standing, walking or frequent bending, stair climbing or lifting"), July 2017 Back (Thoracolumbar Spine) Conditions DBQ (stating that the Veteran's back disability impacted his ability to work and that the Veteran "[s]tated that his back hurts with prolonged sitting,[]standing and walking"). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records (the most recent VA treatment records of record are from July 2016). 2. Inform the Veteran of the inability of VA to obtain private medical records from provider J.K. See 38 C.F.R. § 3.159(e)(2017). 3. Afford the Veteran an appropriate VA examination to determine the severity of his back disability. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. 4. Following completion of the above steps, in the event that the Veteran still does not meet the TDIU schedular criteria, submit the Veteran's case to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) (2017). 5. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. 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 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). _________________________________________________ J.W. FRANCIS 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) (2017).