Citation Nr: 1801557 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-09 026 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for service-connected residuals of degenerative disc disease with lumbar strain, rated as 20 percent disabling (excluding several periods of temporary total ratings for convalescence). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to February 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 RO decision that denied an increase in a 20 percent rating for a service-connected lumbar spine disability. The Veteran initially requested a Board hearing, but withdrew his request in May 2017. During the pendency of the appeal, the RO has assigned several periods of temporary total (100 percent) ratings for convalescence following spinal surgeries. See 38 C.F.R. § 4.30. Such periods are as follows: April 12, 2011 to August 1, 2011, April 3, 2013 to August 1, 2013, August 4, 2015 to December 1, 2015, February 29, 2016 to September 1, 2016, and from September 25, 2017 to December 1, 2017. An increased schedular rating is not for consideration during these periods, as a 100 percent rating is already in effect. The Board notes that the Veteran has asserted that he is unable to work due partly to his service-connected lumbar spine disability. Entitlement to a TDIU was denied in a September 2014 rating decision, and a notice of disagreement was subsequently received from the Veteran. However, a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of the claim for an increased rating for the lumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Roberson v. Principi, 251 F. 3d 1378, 1384 (Fed. Cir. 2001). The Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning the issues of entitlement to increased ratings for bilateral knee disabilities, and service connection for sleep apnea, depression/anxiety, hypertension, and bronchial asthma, as shown in the electronic claims file (VBMS). Such appeals are contained in the VACOLS appeals tracking system as active appeals at the RO. While the Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NODs and is currently in the process of adjudicating the appeals. Action by the Board at this time may serve to actually delay the RO's action on those appeals. As such, no action will be taken by the Board at this time, and the issues presently before the RO will be the subject of a later Board decision, if ultimately necessary. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claims. During the pendency of this appeal, the Veteran has undergone VA compensation examinations of the spine on several occasions, most recently in November 2015. He asserts that his lumbar spine disability has worsened, and recently underwent surgery of the lumbar spine in late September 2017. As the last VA examination was conducted prior to the most recent spinal surgery, the Board finds that a new VA examination is necessary before a decision on the merits may be made. The examiner should determine the current level of severity of the service-connected lumbar spine disability, to include any neurological findings that are shown. 38 C.F.R. § 4.2; see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The VA examiner should review the claims file in connection with the examination, including the additional medical records added to the file after the last VA examination. The Board notes that in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) the Court held that to be adequate examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. In light of the foregoing and the fact that the October 2015 examination report does not fully satisfy the requirements of Correia, Sharp and 38 C.F.R. § 4.59, the Veteran should be afforded a new VA examination before a decision can be rendered on his claim. With regard to the TDIU claim, the Veteran should fully complete and submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). In an August 2014 letter, the RO informed him that his previously submitted form was not fully completed. Ongoing relevant medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); 38 C.F.R. § 3.159(c)(3) (2017); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA medical records of treatment or evaluation of the lumbar spine disability, and associate them with the claims file. 2. Send the Veteran a VA Form 21-8940, and ask him to fill the form out completely and submit it. 3. After the foregoing development is complete, schedule the Veteran for VA lumbar spine examination to determine the current nature and severity of his service-connected lumbar spine disability (residuals of degenerative disc disease with lumbar strain). The examiner should review the claims file, including all relevant medical records, and perform all appropriate tests and diagnostics, including range of motion testing and neurological evaluation. All pertinent symptomatology and findings must be reported in detail. (a) The examiner is asked to report the range of motion measurements in degrees. Range of motion should be tested actively and passively, in weight bearing if possible, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) The examiner should note all symptomatology associated with the lumbar spine and any radiculopathy, if found, as well as the functional impact of the lumbar spine and radiculopathy. The examiner should also address whether the Veteran has incapacitating episodes of disc disease and if so, the frequency and duration of such. A complete rationale should be provided for any opinion offered. 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims for an increased rating for the lumbar spine disability (excluding periods of temporary total ratings), and a TDIU, with consideration of all evidence received since the last supplemental statement of the case. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). 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). S. L. Kennedy 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).