Citation Nr: 1757590 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-10 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 40 percent for low back strain including spondylosis and spondylolisthesis, to include a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Coast Guard from February 1980 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The appellant was afforded a Board videoconference hearing before the undersigned in April 2017. A transcript is of record. During the hearing, the appellant noted that he experiences vision problems, knee problems, and depression due to his service-connected back disability. The Board observes that service connection is in effect for depression, and that entitlement to service connection for degenerative joint disease of the right hip and bilateral knees and entitlement to service connection for a retinal scar have been previously denied. The appellant and his representative are advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Should the appellant wish to file to reopen such claims or file a claim for an increased rating for depression, he and his representative should do so pursuant to the new criteria. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During his April 2017 hearing, the appellant reported that he experiences constant pain, averaging an 8 on a pain scale of 1 to 10, and is now waking up three to four times per night due to his pain. He stated that his back disability has increased in severity since his last VA examination in May 2015. Under these circumstances, the Board finds that a new medical examination is necessary to ensure that the appellant's low back disability is appropriately evaluated. See 38 C.F.R. § 3.159 (c); see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board also observes that, during the hearing, the appellant reported that he had worked for 20 years as a licensed electrician, but had to stop working due to his worsening back disability. He reported that he is unable to sit or stand for long periods of time, and has a great deal of pain while driving a car even short distances. In a Statement in Support of Claim received in November 2013, the appellant reported problems with work due to his back disability, including not being able to meet the physical requirements of his profession. Thus, the Board finds that the record has reasonably raised the issue of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the AOJ has not had an opportunity to develop and adjudicate this issue in the first instance, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940). Accordingly, the case is REMANDED for the following action: 1. Develop the issue of entitlement to a TDIU, to include providing the appellant with the formal TDIU application form (VA Form 21-8940). 2. Associate with the claims file any and all outstanding VA clinical records. From a review of the records in Legacy Content Manager, the database formerly known as Virtual VA, it appears that this was last performed in July 2016. During the April 2017 Board hearing, the appellant indicated that he receives treatment at the VA Medical Center in Columbia, South Carolina, and at the Rock Hill outpatient clinic. The April 2017 hearing transcript also indicates that the appellant has undergone fee-basis treatment at private providers. Any such outstanding records should also be associated with the claims file, after any necessary authorizations are obtained. 3. Schedule the appellant for an appropriate medical examination to determine the nature and current severity of his service-connected low back strain including spondylosis and spondylolisthesis. Access to the appellant's electronic VA claims file should be made available to the examiner for review in connection with the examination. The examiner should identify all symptomatology and pathology associated with the appellant's service-connected low back strain including spondylosis and spondylolisthesis, and comment on the severity of those symptoms and pathology. It should be noted that the appellant reported that his symptoms have worsened since his last VA examination in May 2015, including being unable to sit or stand for long periods, pain when driving even short distances, experiencing constant pain akin to an 8 on a scale of 10, and waking up three to four times per night due to pain. The examiner must provide a clear rationale for all opinions provided. If any opinion cannot be provided without resort to speculation, the examiner must state this and explain why. 4. When the development requested has been completed, the case should be readjudicated by the AOJ, to include consideration of TDIU. If any benefit sought is not granted in full, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).