Citation Nr: 1754319	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  10-15 916	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent for chronic low back strain with degenerative changes (low back disability).

2.  Entitlement to a total disability rating based upon unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

H. Daus, Associate Counsel


INTRODUCTION

The Veteran had qualifying service from August 1966 to June 1969.   

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In April 2014, the Board remanded for further development.  Substantial compliance was achieved.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

In March 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  

The TDIU issue was raised through the Veteran's claim for an increased rating for the low back disability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009). 

The appeals are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran when further action is required.


REMAND

The Veteran testified in his hearing that the manifestations of his low back disability were more severe than they were at his October 2013 VA examination, to include having radiating pain into his legs due to his disability.  See March 2015 transcript.  Given these facts, the evidence currently of record is insufficient to decide the claims, as the AOJ must provide new orthopedic and neurologic examinations.  See March 2015 transcript (contentions of worsening); Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016); 38 C.F.R. § 4.59; Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with appropriate notice of VA's duties to notify and assist.  Particularly, the Veteran should be properly notified 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 TDIU, and request that he supply the requisite information.

2.  Schedule the Veteran for orthopedic and neurologic examinations to assess the current severity of his low back disability, as he contended worsening since the last examination, to include associated neurological symptoms.  Testing in active and passive motion and with weight-bearing and non-weight-bearing should be accomplished, or discussed as to why it is impossible to do so. 

3.  Thereafter, readjudicate the issues on appeal, to include TDIU.  If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case.  The Veteran and his representative should be afforded the applicable time period in which to respond.

The Veteran has the right to submit additional evidence and argument on the remanded matters.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).  All remanded claims must be handled expeditiously.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).



_________________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Only a Board decision is appealable to the United States Court of Appeals for Veterans Claims.  See 38 U.S.C. § 7252 (West 2012).  This remand is in the nature of a preliminary order and does not constitute a Board decision on the merits of your appeals.  See 38 C.F.R. § 20.1100(b) (2017).