Citation Nr: 1752316 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 09-02 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease, lumbar spine. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: John F. Cameron, Attorney-at-Law ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to July 1973 and from June 1974 to June 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the claim resides with the Montgomery, Alabama RO. In May 2014, the Board remanded the claims for further development. Thereafter, in August 2016, service connection for other specified trauma and stressor related disorder with unspecified depressive disorder was granted by the RO. The August 2016 rating decision indicated that the grant was a full grant of the benefit sought on appeal. The issue was not returned to the Board. The Veteran filed an April 2017 notice of disagreement with the August 2016 rating decision, which, in pertinent part, sought a separate service-connected evaluation for PTSD. Despite the RO's characterization, the Board finds that the issue of service connection for PTSD, remanded in the May 2014 Board decision, remained on appeal even though service connection for another psychiatric disability was awarded in August 2016. Since the April 2017 notice of disagreement, a supplemental statement of the case has not been prepared by the AOJ. As noted in the remand below, a supplemental statement of the case is required. The Board notes that the issue of the Veteran's entitlement to a total disability rating based on individual unemployability (TDIU) is also on appeal because the Veteran has alleged that his service-connected degenerative joint disease, lumbar spine interferes with his employment. Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). The Board has therefore added a TDIU claim to the title page to reflect the Board's jurisdiction over this matter. Further development is needed to properly adjudicate the TDIU claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim of entitlement to an increased rating for a low back disability so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2014, the Board remanded the Veteran's claim for an increased rating for a low back disability for a VA examination to address his neurologic symptoms of his bilateral lower extremities and any bowel or urinary conditions. The updated low back examination should have included a separate examination to determine if the Veteran's bowel or urinary conditions and lower extremity neurologic symptoms are secondary to his service-connected low back disability. The AOJ should have then considered whether higher ratings were warranted for the low back disability, to include consideration of whether it is appropriate to assign separate ratings for any neurologic disabilities secondary to or associated with the service-connected low back disability. The AOJ obtained a VA thoracolumbar spine examination in May 2016 that examined the neurologic symptoms of the Veteran's bilateral lower extremities. However, the examination did not address the Veteran's bowel or urinary conditions. The examiner noted the Veteran's reports of neurological abnormalities to include "shooting type pain and numbness down the right leg to the right foot and toes", as well as feeling "like he has to have a Bowel Movement all the time", and "hesitancy of urination and frequency that alternates." However, during the physical examination, the examiner noted similar signs and symptoms of radiculopathy bilaterally, but only indicated involvement of the sciatic nerve on the left side without explanation of the signs and symptoms on the right side. Additionally, the examiner did not address the Veteran's report of bowel and urinary conditions. Accordingly, remand is warranted to obtain a VA examination for the Veteran's neurological abnormalities that addresses his right lower extremity symptoms, as well as any bowel or urinary conditions. Additionally, the Veteran should be afforded another VA thoracolumbar spine examination following the completion of a neurological examination. The examiner should address the results of the neurological examination. As previously instructed in the Board's May 2014 remand, the examiner should also address the findings of the November 2013 private examiner in connection with his/her own observations on examination. As noted above, the Board previously remanded the Veteran's claim of entitlement to service connection for PTSD. Thereafter, the AOJ granted service connection for other specified trauma and stressor related disorder with unspecified depressive disorder. The AOJ additionally indicated in the text of the rating decision that this was considered a full grant of the benefit sought on appeal. However, the Veteran was clearly not satisfied with the decision, which is evident by his continued pursuit of the claim of service connection for PTSD. A statement of the case has not been prepared on this issue. Accordingly, the Board is required to remand the issue for the issuance of a supplemental statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board finds it necessary to remand the issue of entitlement to a TDIU for initial development and consideration, to include sending appropriate notice to the Veteran, in light of the Veteran's claim that his degenerative joint disease, lumbar spine prohibited him from employment. See October 2017 Vocational Evaluation Report. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board will remand for consideration of a TDIU rating under Rice. After accomplishing any additional notification and/or development deemed warranted, the issue of entitlement to a TDIU should be adjudicated in light of all the evidence of record, considering additional occupation impairment caused by his service-connected disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). If it is determined that the Veteran's service-connected disability picture fails to meet the combined rating percentage standards under 38 C.F.R. § 4.16(a), and unemployability due to service-connected disabilities is shown by the record, the issue of entitlement to TDIU should be referred to the Director, Compensation Service under the provisions of 38 C.F.R. § 4.16(b) for extraschedular consideration. Finally, the Board notes that VA medical records were last added to the record in May 2016. Updated records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records dated after May 2016. 2. Send the Veteran an application for a TDIU (VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability) and an appropriate VCAA notification letter. 3. Then, schedule the Veteran for a VA neurological examination, by an appropriate physician, at a VA medical facility. The entire claims file must be made available to the examiner, and the examination report must include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays) must be accomplished, and all clinical findings must be reported in detail. The examiner must set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. The physician must identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the Veteran's service-connected low back disability. The examiner must clearly identify whether any such problems constitute separately ratable neurological manifestation(s) of the service-connected low back disability. In particular, the examiner must discuss the Veteran's sciatic nerve involvement, if any. Concerning any neurological symptoms identified, the examiner must state whether there is complete or incomplete paralysis of the nerve. If incomplete paralysis is present, the examiner must provide an opinion as to whether it is mild, moderate, moderately severe, or severe. All neurological manifestations and diagnoses should be addressed, and if necessary, etiology opinions as to whether it is at least as likely as not such manifestations are caused by the Veteran's low back disability should be provided. 4. Then, schedule the Veteran for a VA orthopedic examination, by an appropriate physician, at a VA medical facility. The neurological examination should be conducted first, and that examination report made available to the VA orthopedic examiner in conjunction with his or her examination. The entire claims file must be made available to the examiner, and the examination report must include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays) must be accomplished, and all clinical findings must be reported in detail. The examiner must set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. The physician must conduct range of motion testing of the thoracolumbar spine (expressed in degrees, with standard ranges provided for comparison purposes). The physician must render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician must indicate the point at which pain begins. In addition, the physician must indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner must express any such additional functional loss in terms of additional degrees of limited motion. If muscle spasm or guarding is present, the examiner must state whether it is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Considering all orthopedic and neurological findings, the physician must also render findings particularly responsive to the criteria for rating intervertebral disc syndrome (IVDS)-specifically, comment as to the existence and frequency of any of the Veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his lumbar spine disability, the examiner must specify their frequency and duration. The examiner is specifically requested to address the findings of the November 2013 private examiner in connection with his/her own observations on examination. 5. After ensuring that all requested development has been accomplished to the extent possible, the AMC/RO must readjudicate the Veteran's claims based on a de novo review of the record. In connection with the claim for an increased rating, the AMC/RO is specifically requested to consider the applicability of 38 C.F.R. § 3.321(b). If it is determined that the Veteran's service-connected disability picture fails to meet the combined rating percentage standards under 38 C.F.R. § 4.16(a), and unemployability due to service-connected disabilities is shown by the record, the issue of entitlement to TDIU should be referred to the Director, Compensation Service under the provisions of 38 C.F.R. § 4.16(b) for extraschedular consideration. 6. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. 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). _________________________________________________ L M. BARNARD 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).