Citation Nr: 1753593 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-09 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for degenerative joint and disc disease of the lumbo-sacral spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: William M. Fisher, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran had active military service from June 1966 to June 1970. He received the Purple Heart Medal with star. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative joint and disc disease of the lumbo-sacral spine and assigned a 20 percent disability rating. The Veteran testified before the undersigned veterans law judge (VLJ) in January 2017. A transcript of the proceeding has been reviewed and associated with the claims file. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, private medical opinions dated in November 2007 and July 2010 indicate that the Veteran's lumbar spine disability impacts his ability to work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) ("[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider . . . TDIU."). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Increased Rating The Veteran is currently assigned a 20 percent disability rating for degenerative joint and disc disease of the lumbo-sacral spine. A VA examination was performed in October 2008, at which time the Veteran complained of chronic constant low back pain. He indicated that his lower back pain increased with certain activities. He denied any major incapacitating episodes, flare-ups, prolonged immobilization, or hospitalization for the last one year. Range of motion testing of the dorsolumbar spine revealed flexion to 50 degrees; extension to 10 degrees; right and left lateral flexion to 15 degrees; and right and left rotation to 25 degrees. The examiner assessed the Veteran with degenerative joint disc disease of the lumbosacral spine and indicated that joint function was not additionally limited by pain, weakness, fatigue, or lack of endurance after repetitive use. The Veteran submitted a private physician statement dated in April 2017. The physician conducted a review of the record and assessed the Veteran with intervertebral disc syndrome with radiculopathy and indicated that the he had incapacitating episodes in excess of 6 weeks during the past 12 months. However, the Board notes that the physician listed the records he reviewed chronologically and the last/most recent record listed was dated in July 2010. Moreover, the physician failed to discuss or indicate the physician who prescribed bed rest and treatment as required to receive a disability rating for intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Furthermore, the Board notes that the claims file only contains the Veteran's 2007 treatment records. The Veteran indicated during the hearing that he received treatment in 2014 at the Manila Disc Institute. Accordingly, on remand, the Board finds that the AOJ should obtain the Veteran's updated treatment records and schedule him for a VA examination to assess the severity of his lumbar spine disability. TDIU Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). The Veteran indicated that he stopped working as a pipe fitter in June 2007 because of his lumbar spine disability. He submitted private physician statements dated in November 2007 and July 2010, which indicate that he is totally disabled from gainful employment. Furthermore, records from the Social Security Administration (SSA) indicated that the Veteran has been disabled since July 9, 2007, due to disorders of the back, discogenic & degenerative. Accordingly, the Board finds that a TDIU claim has been raised by the record in this case. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. Currently, the Veteran's total combined disability rating is 50 percent. Thus, he does not meet the threshold requirements for a TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the claim must be referred to the Director, Compensation Service. Accordingly, the case is REMANDED for the following actions: 1. Obtain authorization and then associate with the claims file the Veteran's private treatment records from the Manila Disc Institute and any additional treatment records the Veteran identifies with regard to his treatment for his lumbar spine disability from November 2007 to the present. All efforts and notices to obtain these records should be associated with the claims file. 2. After completing #1, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. If flare-ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner must also state the total duration of incapacitating episodes due to intervertebral disc syndrome over any given 12-month period, if such episodes have been present at any point during the appeal period. Incapacitating episodes are defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Complete neurological findings should also be included. The examiner should discuss the Veteran's reports of radiating pain during the October 2008 VA examination and the assessment of radiculopathy by the April 2017 private physician. The examiner should comment on the Veteran's ability to function in an occupational environment, document any education and work experience reported by the Veteran during the exam, and/or describe any functional impairment. If the examiner is unable to conduct any of 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. 3. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. 4. Thereafter, if the Veteran does not meet the schedular requirements under § 4.16(a), refer the claim for a TDIU to the Director, Compensation Service, and notify the Veteran of such action. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant 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). _________________________________________________ Paul Sorisio 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).