Citation Nr: 1800567 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-07 024A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability, to include entitlement to separate compensable ratings for radiculopathy of the lower extremities. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from October 1979 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied an increased rating for a lumbosacral spine disability. A January 2016 rating decision denied a rating in excess of 20 percent, and denied service connection for sciatic nerve radiculopathy of the right lower extremity and the left lower extremity. The Veteran appeared at a June 2017 hearing before the undersigned Veterans Law Judge at the RO. A hearing transcript is of record. The Veteran asserted at the June 2017 Board hearing that the service-connected lumbar spine disability made him unemployable. When entitlement to a TDIU is raised during the process of rating an underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of entitlement to TDIU is part of this appeal. REMAND The Veteran asserts that a rating in excess of 20 percent is warranted for a service-connected lumbar spine disability as it has progressively increased in severity, necessitates ongoing private medical treatment, and resulted in his early retirement from the United States Postal Service. At the June 2017 Board hearing, the Veteran testified that he received ongoing private treatment for the service-connected lumbar spine disability from a Dr. Downey and a Dr. Ero on at least a monthly basis. He stated that he did not receive any VA treatment for the disability. In reviewing the record, the Board observes that while some written statements from Drs. Downey and Ero have been received by VA, clinical documentation of the cited ongoing monthly private treatment is not of record. VA should obtain all relevant private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). A February 2009 written statement from the United States Office of Personnel Management conveys that it had determined that the Veteran was disabled due to a back condition. The Veteran was last provided a VA examination which addressed the lumbar spine in December 2015. The December 2015 VA examination report states that the Veteran was diagnosed with "DDD lumbar spine and L4-5 disc bulge per imaging." Notwithstanding that diagnosis, the examiner concluded that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. The VA nurse practitioner further determined that service-connected lumbar spine degenerative disc disease did not impact on his ability to work. The examiner neither addressed the February 2009 statement from the United States Office of Personnel Management that had found that the Veteran was disabled due to the lumbar spine disability, nor provided any basis for the conclusion that the service-connected lumbar spine disability was not productive of any occupational impairment. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the cited deficiencies in the December 2015 VA examination report and the Veteran's statements as to the increase in severity of the lumbar spine disability, the Board concludes that further VA spine evaluation is required. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of the service-connected lumbosacral spine disability since December 2010, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact H. Downey, M.D.; S. Ero, M.D.; and all other identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Schedule the Veteran for a VA spine examination to assist in determining the current severity of the service-connected lumbar spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbar spine. Opine whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, on flare up, or with repeated use. (b) Note any incapacitating episodes associated with the lumbar spine disability and the duration of any incapacitating episodes. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (c) Note any lower extremity radiculopathy or other neurological impairment associated with the lumbar spine disability. Specifically opine whether it is at least as likely as not (50 percent or greater probability) that there is radiculopathy of either lower extremity due to the lumbar spine disability. If so, state the nerves involved and the severity of any impairment. (d) Specifically address the impact of the lumbar spine disability on the Veteran's vocational pursuits. (e) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, state what type of work and what accommodations would be necessary due to the service-connected disabilities. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts 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).