Citation Nr: 1750131 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 09-13 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial schedular disability rating in excess of 10 percent for a service-connected back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1982 to November 1991 and from August 1993 to June 2007. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in June 2016 for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After reviewing the record and the Veteran's contentions, the Board finds that further development is necessary to fairly adjudicate the Veteran's claims. The Veteran contends there may be outstanding, relevant records not associated with the claims file. See, e.g. July 2017 letter from the Veteran. The AOJ should make reasonable attempts to obtain outstanding, relevant records with the Veteran's assistance. The Veteran also contends that prior VA examinations of his back disability are inadequate. In particular, the Veteran asserts that his functional limitations with flare-ups were not adequately addressed in the context of his medical history to include an opinion from his private doctor. See, e.g. July 2017 letter from the Veteran; December 2016 letter from the Veteran; September 2012 opinion of D.R.S. (indicating the Veteran's thoraco-lumbar forward flexion was limited to less than 30 degrees of the expected normal of 90 degrees at the time including additional functional loss after repeated attempts). The Veteran noted that the October 2016 VA spine examiner was unable to assess the Veteran's functional limitations during a flare-up or during repeat testing at the time, and the examiner did not review the Veteran's claims file. The AOJ should afford the Veteran another VA examination of his back disability addressing the effects of flare-ups including during repeat testing to the extent possible. The AOJ should ensure that the VA examiner is provided with a copy of the Veteran's claims file. The AOJ should ensure that the VA examiner makes reasonable attempts to assess the effects of flare-ups based on a review of the record. The Veteran has been assigned a disability rating of 40 percent for left sciatica with foot drop, also claimed as left thigh pain, Achilles tendonitis, and muscle atrophy. However, the record shows that he experiences right-sided radiculopathy as well. See, e.g., October 2016 VA spine examination (noting the Veteran has bilateral radiculopathy). This should be evaluated by VA examination. In its June 2016 remand order, the Board noted that the issue of entitlement to a TDIU was raised and referred the matter to the AOJ for adjudication. As the Veteran has noted, the issue has not been adjudicated to date by the AOJ. See July 2017 letter from the Veteran; December 2016 letter from the Veteran. After conducting all necessary development, the AOJ should adjudicate the issue of the Veteran's entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request the Veteran's assistance in identifying all outstanding relevant records from VA and private sources. The AOJ should make reasonable attempts to obtain all outstanding, relevant records and associate them with the Veteran's claims file. 2. The AOJ should conduct necessary development in regard to the Veteran's claim for a TDIU. 3. After associating all outstanding, relevant records with the claims file, the AOJ should afford the Veteran an appropriate VA examination(s) with an appropriate examiner(s) to: (1) assess the current severity of the Veteran's back disability to include bilateral radiculopathy in the context of the expanded evidentiary record and (2) generally assess the Veteran's work-related functional limitations resulting from service-connected disabilities. The AOJ should provide the VA examiner with a complete copy of the Veteran's claims file to include this remand order. The VA examiner(s) is asked to follow these directives: a) The VA examiner should assess the current severity of the Veteran's back disability. The examiner is asked to assess the range of motion, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. b) The examiner should specifically offer an opinion as to the impact of any functional loss due to pain during flare-ups, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, or functional loss manifestations related to flare-ups. c) The examiner should specifically offer an opinion as to the impact of repetitive use over time on his functional ability. If the examiner deems it necessary, the Veteran should be asked to engage in repetitive use over time prior to the examination. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). d) After reviewing the Veteran's medical history and subjective complaints, the VA examiner should opine whether the Veteran has radiculopathy of the right lower extremity that is related to his back disability. Any additional neurological, bladder, or bowel impairment should also be noted. e) In addition to his back disability and associated neurological symptoms, the Veteran is service-connected for obstructive sleep apnea, degenerative joint disease in the right knee, a residual laminectomy scar, a mood disorder, and gastroesophageal reflux disease (GERD). To the extent possible, the VA examiner should provide an assessment of how the Veteran's service-connected disabilities impact his ability to perform work to include but not limited to functions such as sitting, standing, walking, stooping, lifting, carrying, pulling, pushing, reaching, driving, and maintaining concentration and persistence on simple tasks. 4. After completing the above actions and any other necessary development, a supplemental statement of the case must be provided to the Veteran and any appointed representative. After the Veteran and any appointed representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. HENEKS 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).