Citation Nr: 1753856 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 13-10 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for lumbar spine disability. 2. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating due to individual unemployability from service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.Z., Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1989 to November 1993. These matters come on appeal before the Board of Veterans' Appeals (Board) from various rating decisions by the Department of Veterans Affairs Regional Offices (RO) located in Winston-Salem, North Carolina and New Orleans, Louisiana. The jurisdiction has been consolidated with the Winston-Salem RO. In April 2014, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing held via videoconference capabilities from the RO. A copy of the hearing transcript is of record. In March 2015 the Board decided in part, and remanded in part, the Veteran's appeal. The remanded issues are now again before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Further development is required before the Board can adjudicate the appeal. In this regard, the Veteran's representative has argued that the October 2016 VA examination to assess the current severity of the Veteran's lumbar spine was insufficient. In particular, no imaging studies were conducted as part of the examination; instead, the examiner cited an MRI from December 2014. The Veteran's representative has argued that current medical literature suggests that some type of imaging studies should be used to adequately assess the Veteran's disability. Accordingly, the Board finds that a new examination is warranted. Regarding the Veteran's PTSD claim, the record shows that the Veteran has identified private mental health treatment with Dr. E.H. between 2005 and 2010. The Veteran also submitted May 2010 Authorization and Consent to Release Information, VA Form 21-4142 for private psychiatric treatments records from Dr. H. While the record contains the report of a June 2005 private psychiatric evaluations from Dr. H., which the Veteran submitted, the regular private treatment records remain outstanding. Pursuant to the March 2015 remand, the AOJ sent the Veteran the appropriate disclosure paperwork to seek to obtain such records; however, the Veteran failed to return the forms. See May 2016 correspondence. As only one attempt to obtain authorization from the Veteran to request such records has been made, the Board finds that a follow-up request for authorization is required. The matter of entitlement to TDIU is inextricably intertwined with the increased rating claims; accordingly, such must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain any recent, outstanding VA treatment records. 2. Provide the Veteran with VA Forms 21-4142, Authorization and Consent to Release Information to VA, for mental health treatment from any private health care provider, to include Dr. E. H. If private records are identified, make an attempt to obtain the relevant private treatment records or make a finding that a second request for such records would be futile. All development efforts with respect to this directive should be associated with the claims file. 3. Schedule the Veteran for VA orthopedic and neurologic examinations with the appropriate examiner(s) to determine the current severity of his service-connected lumbar spine disability. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examination must include a current imaging study. Complete range of motion studies should be conducted, to include motion on extension and rotation of the lumbar spine, with notation of the point at which pain on motion objectively appears to begin. The examiner should also express an opinion as to the medical probability that there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If this is not feasible, this should be so stated. The examiner should also report all neurologic impairment resulting from the service-connected lumbar spine disability. For any neurologic impairment in the lower extremities, the examiner should identify the nerve impaired and indicate whether there is complete or partial paralysis, neuralgia, or neuritis; and whether any partial paralysis, neuritis or neuralgia is mild, moderate, moderately severe, or severe. Finally, the examiner should discuss the impact, if any, the disability has on the Veteran's ability to obtain and maintain gainful employment and activities of daily living. If the examiner does not find that the service-connected disabilities preclude gainful employment, the examiner is requested to discuss the types of employment the Veteran would be able to obtain and maintain. The examiner must provide a rationale for each of the opinions that take into account the Veteran's reports of his history and his current symptoms. If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so. 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity 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). _________________________________________________ MICHAEL LANE 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).