Citation Nr: 1752969 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-27 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for lumbar degenerative disc disease evaluated as 10 percent disabling from January 9, 2012 to October 28, 2015. 2. Entitlement to an increased rating for lumbar degenerative disc disease evaluated as 40 percent disabling since October 29, 2015. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul Bametzreider, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to December 1991. The Veteran also served in the National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal of March 2012 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified in October 2014 before the undersigned. A transcript of that hearing is associated with the claims file. In July 2015 the Board remanded the issues for evidentiary development. The case has now been returned to the Board for further appellate action. In March 2016, during the pendency of the appeal, VA granted entitlement to a 40 percent rating for lumbar degenerative disc disease, effective October 29, 2015. That award constitutes only a partial grant of the benefit sought on appeal; therefore, this issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). At the October 2014 Board hearing, the Veteran raised issue of entitlement to service connection for tinnitus (ringing in the ears). This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Lumbar spine Remand is warranted to obtain a new lumbar spine examination. A remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its July 2015 remand instructions, the Board directed that a new VA examination was to be performed after a review of "the physical and electronic claims file including the Veterans Benefits Management System and Virtual VA files." The October 2015 VA examiner specifically indicated that only the Veteran's certificate of release or discharge from active duty (DD-214) and Veterans Health Administration medical records were reviewed. The claims file contains important evidence including the Veteran's lay statements concerning the functional impact of his lumbar disability. As the October 2015 VA examination did not comply with the July 2015 Board remand instructions, a new VA examination must be obtained. Additionally, at the October 2014 Board hearing, the Veteran indicated that he had applied for Social Security disability benefits. There is no indication the medical records used in any Social Security Administration decision have been requested. As they are potentially relevant to the appeal issues they must be requested. See Golz v. Shinseki¸ 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security records if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). Individual unemployability The issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is inextricably intertwined with the issue remanded above. This issue is therefore remanded, to be addressed after the following development has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Board notes that the Veteran is service connected for posttraumatic stress disorder with major depressive disorder, a chronic right shoulder strain, bilateral lower extremity radiculopathy and bilateral ankle degenerative joint disease. All of these disorders must be considered in addressing the appellant's entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. As such, on remand all pertinent treatment records must be secured, and examinations must be conducted to determine the current nature and extent of these disorders. Accordingly, the case is REMANDED for the following action: 1. The RO is directed to request records from the Social Security Administration pertaining to any award or denial of disability benefits. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain these Federal records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Obtain all outstanding, pertinent VA treatment records, including records from the Columbia, South Carolina VA Medical Center, dating since July 2017. All records received should be associated with the claims file. If the AOJ cannot locate these Federal records it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Contact the Veteran and ask him to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. Thereafter, schedule the Veteran for VA examinations with appropriate examiners to address the current nature and severity of the Veteran's lumbar degenerative disc disease, chronic right shoulder strain, bilateral ankle degenerative joint disease, bilateral lower extremity radiculopathy and posttraumatic stress disorder with major depressive disorder. The Veteran's VBMS and Virtual VA files must be made available to examiners for review of the case. A notation to the effect that this record review took place must be included in the report of each examiner. Each examiner must specifically describe all functional impairment due to the respective disability or disabilities, to include the impact of any medication used to treat the foregoing. Each examiner must specifically describe how any functional impairment due to the disability or disabilities impacts the Veteran's ability to obtain or maintain employment. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the physician, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 5. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failing to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. The AOJ must then review the aforementioned examination reports to ensure that it is in complete compliance with the directives of this remand, and that the examiner has documented their consideration of all records contained in Virtual VA and VBMS, as appropriate. If any report is deficient in any manner, the AOJ must implement corrective procedures. 7. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).