Citation Nr: 1754735 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-16 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Evaluation of right lower extremity radiculopathy, currently rated as noncompensable. 2. Entitlement to an increased rating for lumbar spine multilevel degenerative findings and disc herniation in excess of 20 percent disabling. 3. Entitlement to an increased rating for chronic urticaria in excess of 30 percent disabling. 4. Entitlement to an increased rating for depressive disorder in excess of 10 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1985 to April 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Decatur, Georgia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his June 2013 substantive appeal. However, VA's Veterans Appeals Control and Locator System (VACOLS) reflects that the Veteran canceled his scheduled hearing. As a result, the Board considers the Veteran's request for a hearing withdrawn. The Veteran has attributed his unemployment as due to his lumbar spine and urticaria disabilities. Although TDIU was denied by the RO in the October 2010 rating decision and was not appealed by the Veteran, a TDIU rating is inherent in any claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, it has been added as an issue on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his appeal, specifically by obtaining new VA examinations. The Veteran's most recent VA examination for all his service-connected disabilities on appeal occurred in February 2010. Since that time, he has indicated that his disabilities have worsened. See November 2010 notice of disagreement. Because it has been almost eight years since the last VA examinations, contemporaneous examinations are required to assess the current severity of his service-connected disabilities. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, in consideration of recent case law, the Board finds that the Veteran's VA spine examination of record is inadequate for rating purposes. See Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examination report of record does not present all of the necessary findings. Accordingly, remand for an additional VA spine examination is necessary on this basis as well. The matter of entitlement to TDIU is inextricably intertwined with the Veteran's other claims; accordingly, it must be remanded as well. Lastly, the Veteran stated that he received treatment from the VA Medical Centers (VAMCs) located in Dublin and Gainesville, as well as the Jacksonville Community based Outpatient Clinic (CBOC). It appears that VA treatment records from Dublin VAMC are missing from January 2010 to the present, and records from the Gainesville VAMC (to include the Jacksonville CBOC) are missing from October 2009 to December 2009 and from June 2010 to the present. Accordingly, updated VA treatment records should be sought on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from the Dublin VAMC for the Veteran's disabilities from January 2010 to the present and from the Gainesville VAMC (to include the Jacksonville CBOC) from October 2009 to December 2009 and from June 2010 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. After the above development has been completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbar spine disability, to include his right lower extremity radiculopathy. A separate examination for the Veteran's right lower extremity radiculopathy should be conducted if the examiner finds it necessary. The examiner must review the entire record in conjunction with the examination. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests and studies should be completed. Range of motion studies should include active and passive motion and pain on weight-bearing and non-weight-bearing. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors (if the Veteran is not experiencing a flare up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare ups and the examiner should provide an opinion, using range of motion measurements, if possible, based on that information). If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. A detailed explanation (rationale) is required for all opinions provided. 3. After the development in the first instruction is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected urticaria. The examiner must review the entire record in conjunction with the examination. Any indicated tests and studies must be completed and all clinical findings must be reported in detail. Specifically, the examiner should state whether the Veteran has had recurrent debilitating episodes occurring at least four times during any 12 month period despite continuous immunosuppressive therapy during the appeal period (from October 2008 to the present). A detailed explanation (rationale) is required for all opinions provided. 4. After the development in the first instruction is completed, the AOJ should arrange for a psychiatric examination of the Veteran to assess the current severity of his service-connected depressive disorder. The examiner must review the entire record in conjunction with the examination. If the disability picture presented shows worsening of the disability, the examiner should discuss the associated functional limitations and expected impact on social and occupational functioning, and note when (as shown by the record) such worsening first became apparent. A detailed explanation (rationale) is required for all opinions provided. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C § 7252 (2012). This remand is a preliminary order and not an appealable decision on the merits of the claims. 38 C.F.R. § 20.1100(b) (2017).