Citation Nr: 1802222 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-01 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a low back disorder. 2. Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. Some relevant records are located in Content Legacy Manager, and all records are now in these electronic systems. The Board notes that the Veteran's January 2014 substantive appeal raised the issue of entitlement to TDIU. Therefore, the title page of this decision reflects the claim for TDIU. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to a rating in excess of 20 percent for a low back disorder. He last underwent a VA examination in October 2013, and was diagnosed with low back strain with disk protrusion. Since that time, the Veteran's representative has stated that his low back disorder has worsened. See December 2017 Appellant's Brief. Under these circumstances, another VA examination is necessary to determine the current severity of his service-connected low back disorder. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, December 2012 VA treatment records reflect bilateral lower extremity lumbar radiculopathy symptoms and lumbar degenerative disk disease. The new VA examination should address the severity of these symptoms. Finally, the Veteran's January 2014 substantive appeal indicated that he was unable to work due to his low back disorder. In this case, the AOJ has not considered whether the Veteran is entitled to TDIU due to his service-connected disabilities. The Board finds that AOJ should adjudicate this matter, in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 4 Vet. App. 384 (1993). That matter is also intertwined with issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter advising him of the information and evidence needed to award a TDIU. This letter should also request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim of TDIU. 2. Obtain any available VA treatment records since April 2014. 3. Thereafter, schedule the Veteran for a VA examination to address the current severity of his thoracolumbar spine disorder and related neurological symptoms. The examiner must review the Veteran's Legacy Content Manager and VBMS files. The examiner should indicate in the opinion that all pertinent records were reviewed. All clinical findings must be reported in detail and correlated to a specific diagnosis. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran to describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The examiner should also address the severity (i.e., favorable or unfavorable) and location of any ankylosis, and note any functional limitation caused by the thoracolumbar disorder. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: * Active motion; * Passive motion; * Weight-bearing; and * Nonweight-bearing. 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. The examiner should also determine the extent of any neurological impairment related to his thoracolumbar spine disorder, specifically addressing December 2012 VA treatment records reflect bilateral lower extremity lumbar radiculopathy symptoms. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 4. After completing the actions detailed above, readjudicate the claim remaining on appeal, and adjudicate the claim for TDIU, if otherwise developed. If additional examination is needed to adjudicate the TDIU claim, such examination should be scheduled. If the benefit is not granted to Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran (and his representative, if he has appointed one). After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ T. MAINELLI 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).