Citation Nr: 1802491 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-44 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating greater than 10 percent prior to September 17, 2015, and greater than 20 percent thereafter for osteoarthritis of the cervical spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1962 to July 1966 and from October 1973 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, in pertinent part, the Veteran's claims for a disability rating greater than 10 percent for osteoarthritis of the cervical spine and a TDIU. The Veteran disagreed with this decision in December 2008. He perfected a timely appeal in November 2009. A Travel Board hearing was held in February 2012 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In November 2012, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's November 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In July 2015, the Board denied, in pertinent part, the Veteran's claim for a disability rating greater than 10 percent for osteoarthritis of the cervical spine. The Veteran, through an attorney, and VA's Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court). Both parties to the Joint Motion requested that the Court vacate and remand that part of the Board's July 2015 decision which denied the Veteran's increased rating claim for osteoarthritis of the cervical spine. The Court granted the Joint Motion in May 2016. In a February 2016 rating decision, the AOJ assigned a higher 20 percent rating effective September 17, 2015, for the Veteran's service-connected osteoarthritis of the cervical spine. Having reviewed the record evidence, the Board finds that this claim should be characterized as stated on the title page. In February 2017, the Board again remanded the currently appealed claims to the AOJ for additional development. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Unfortunately, as is explained below, the appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that his service-connected osteoarthritis of the cervical spine is more disabling than currently evaluated. He also contends that his service-connected disabilities, alone or in combination, preclude him from securing or maintaining substantially gainful employment, entitling him to a TDIU. The Board recognizes that this appeal has been remanded on several occasions previously, most recently in February 2017. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). With respect to the Veteran's increased rating claim for osteoarthritis of the cervical spine, the Board observes that, in its February 2017 remand, it directed the AOJ to attempt to obtain clarification from Ruben B. Timmons, M.D. (who was identified as Dr. R. T.), a private clinician who examined the Veteran in January 2012 and provided examination findings concerning the nature and severity of this service-connected disability. See Board remand dated February 17, 2017, at pp. 4-5. The Board noted in its February 2017 remand that this appeal had been remanded by the Court in May 2016 specifically to obtain this information from Dr. Timmons. See also Savage v. Shinseki, 24 Vet. App. 259, 270 (2011) (discussing VA's duty to obtain clarification of medical evidence from private clinicians). Unfortunately, a review of the Veteran's VBMS eFolder shows that the AOJ did not comply with the Board's February 2017 remand instruction concerning the need for clarification from Dr. Timmons. The Board acknowledges that the AOJ sent the Veteran (but not Dr. Timmons) a letter in February 2017 which indicated that VA needed to seek clarification from Dr. Timmons concerning his January 2012 findings. There is no record of a response from the Veteran to this letter and it is not clear from a review of this letter whether the AOJ was asking the Veteran to obtain clarification from Dr. Timmons. In Stegall, the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board in September 2017 without complying with the February 2017 remand instructions. Given this error, another remand is required. With respect to the Veteran's TDIU claim, the Board notes that, although the VA examinations of record address the impact of certain of the Veteran's service-connected disabilities on his employability, there is only limited information concerning whether these disabilities, alone or in combination, preclude his employability. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the impact of his service-connected disabilities, alone or in combination, on his employability. The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA and private treatment records which have not been obtained already. 2. As requested in the Board's February 2017 remand, contact Ruben B. Timmons, M.D., and request clarification from this physician as to whether he used a goniometer to measure the range of motion in the Veteran's cervical spine when examined on January 25, 2012. If records dated in January 2012 are no longer available for review from this physician, Dr. Timmons is asked to state whether it is his usual practice to measure range of motion with a goniometer. A copy of any letter sent to Dr. Timmons, and any reply, should be associated with the claims file. 3. Schedule the Veteran for appropriate examination to determine whether his service-connected disabilities, alone or in combination, render him unable to secure or follow a substantially gainful occupation. The claims file should be provided for review. The Veteran should be asked to provide a complete medical and employment history, if possible. The examiner is asked to specify the occupational limitations associated with the Veteran's service-connected disabilities. A complete rationale must be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner must explain why this is so. The examiner is advised that service connection is in effect for cognitive disorder, not otherwise specified, lumbosacral strain, osteoarthritis of the cervical spine, hypothyroidism, tinnitus, radiculopathy of the left lower extremity, postoperative pterygium of the right eye, maxillary and ethmoid sinusitis, hemorrhoids, residual scars of the index and middle fingers of the right hand, osteoarthritis of the right ankle, osteoarthritis of the left ankle, and for bilateral hearing loss. 4. Provide the Veteran with a VA form 21-8940, and instruct him to fill it out return it to the RO/AMO. He must complete the form for the years 2008 to the current. Additionally, ask the Veteran to submit copies of his tax returns for the tax years of 2008 through the current tax year and a statement that the copies are exact duplicates of the returns filed with the IRS. If the Veteran is unable or unwilling to furnish the required evidence, follow the procedures in M21-1, Part I, 1.C.1. or ask the Veteran submit IRS Form 4506-T "Request for Transcript of Tax Return." The following link is for reference purposes: https://www.irs.gov/pub/irs-pdf/f4506t.pdf 5. Readjudicate the appeal. 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 (West 2012). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).