Citation Nr: 1756412 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-02 815 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for lumbosacral strain. 2. Entitlement to a compensable evaluation for residuals of right ankle sprain. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: New Mexico Department of Veterans' Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse. ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served in the U.S. Marine Corps from January 1975 to February 1977. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision of the Albuquerque, New Mexico, Regional Office (RO). In March 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Given the Veteran's reports of the worsening severity of the service-connected disorders at issue, remand is necessary for updated medical examinations. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to obtain an opinion as to the nature and severity of his lumbosacral strain in accordance with VA rating protocols. All indicated tests and studies should be accomplished and the findings reported in detail. Although the examiner must review the VBMS file, the examiner's attention is drawn to the following: *A March 2007 private treatment note indicating the Veteran could work with restrictions including no lifting of items 20 pounds or heavier and no climbing. *A June 2007 private treatment note reporting the Veteran's back prevented him from working with ground penetrating radar (GPR) because it required twisting and bending. *A November 2010 lay statement indicating that the Veteran experiences constant back pain and is unable to sit, stand, or walk for an extended period of time. The Veteran also stated that he has difficulty sleeping. *A November 2010 lay statement from the Veteran's spouse indicating that he has had back pain since they met in 1979 and his back has gotten worse. The Veteran's spouse indicated that he is unable to do vehicle maintenance, house work, yard work, or retrieve firewood due to his back pain. *A November 2010 treatment note indicating the Veteran has chronic low back pain which radiates down his left leg. *A December 2010 VA examination reporting the Veteran was laid off in 2008 due to his back pain and stiffness. The examiner noted pain in the back, radiating down to both legs and intermittent numbness and tingling. *A December 2012 VA treatment note indicating normal range of motion in the Veteran's back but does not list the measurements taken or the method used. *A February 2013 examination noting range of motion measurements including flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The examiner noted less movement than normal, normal muscle strength, no radiculopathy, and no neurologic abnormalities such as bowel or bladder problems. *A January 2014 letter from the Veteran's private doctor stating his lumbosacral strain limits his forward flexion to 10 degrees and his extension to less than 15 degrees. The letter also states the Veteran currently has unfavorable ankylosis of the spine. *In his March 2017 hearing testimony the Veteran indicated that his service-connected disabilities caused a reduction in productivity which led to him losing his job in December 2008. The Veteran also described pain radiating down from his back to his buttocks and legs. The Veteran indicated that he has not had bowel accidents but has had approximately two bladder accidents as a result of his back in the preceding year. 2. Schedule the Veteran for a VA examination to obtain an opinion as to the nature and severity of his right ankle disability in accordance with VA rating protocols. All indicated tests and studies should be accomplished and the findings reported in detail. Although the examiner must review the VBMS file, the examiner's attention is drawn to the following: *A February 2013 VA examination indicating the Veteran has continued pain and stiffness in his right ankle with normal range of motion. *A January 2014 letter from the Veteran's private doctor indicating the Veteran's plantar flexion is between 15-20 degrees and the Veteran walks with a severe limp. *In his March 2017 testimony the Veteran indicated that his right ankle disability has worsened since his February 2013 VA examination and stated his right ankle will collapse when his foot is placed on uneven ground. 3. Readjudicate the issues on appeal, including TDIU. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Vito A. Clementi 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).