Citation Nr: 1803181 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-22 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for residuals of a fracture of L-1 and L-2 vertebra, to include arthritis of the lumbar spine. 2. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the lower left extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran's lumbar spine disability was originally service connected in an August 1971 RO decision at 10 percent. The Veteran was granted a 100 percent temporary rating for convalescence from February 15, 2010, to July 1, 2010, at which point the disability rating was set at 20 percent. The Veteran was granted another 100 percent temporary rating for convalescence from November 15, 2013 to March 1, 2014, at which point the disability rating was set at 20 percent. In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board regrets the delay, additional development is necessary prior to the adjudication of the remaining claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). During the July 2017 Board hearing, the Veteran testified that he suffers from constant back pain, limited range of motion, numbness, and sometimes a burning sensation down both legs. When asked if he was able to flex or move his spine without pain, the Veteran responded that there is constant pain and it hurts on movement. Standing and sitting for prolonged periods of time exacerbate his symptoms, as the Veterans Law Judge noted in the record that the Veteran was in obvious pain from his back during the hearing. The Veteran was afforded a VA examination in August 2014, but the symptoms described by the Veteran during the July 2017 Board hearing indicated that his condition has worsened since the last exam. Although the Veteran submitted a July 2017 Back Conditions Disability Benefits Questionnaire (DBQ) prepared by his private treating physician, the medical findings are inconsistent and contradictory, notably that the Veteran's thoracolumbar spine has a forward flexion range of 40 degrees and yet has unfavorable ankylosis of the entire thoracolumbar spine. Note 5 under the General Rating Formula for Diseases and Injuries of the Spine defines "unfavorable ankylosis" as a condition in which the entire cervical, entire thoracolumbar, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more symptoms listed therein, none of which were named in the July 2017 DBQ. As such, a new VA examination is necessary to ascertain the current severity of the Veteran's disability. As for the claim for an increased rating for radiculopathy of the lower left extremity, because the claim is service-connected secondary to the Veteran's lumbar spine disability, it is inextricably intertwined with the remanded claim. As the claims should be considered together, it follows that, any Board action on the radiculopathy claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The Board notes that the Veteran previously filed a claim for TDIU during the course of the appeal, which was denied by the RO in December 2014. While this decision was never appealed, when a veteran submits a claim seeking an increased rating for a service-connected medical disability, it is construed as a claim for the highest rating possible to include entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As such, although his TDIU claim was previously denied, it may be effectively re-raised when the evidence is added to the record which may support a claim of unemployability that was not previously considered. During the July 2017 Board hearing, the Veteran and his wife testified to the fact that although the Veteran's lower back has improved since the November 2013 surgery, he and his wife testified to the fact that he has been unable to work since his February 2010 due to his back pain and leg pain. Their testimonies are new evidence added to the record which may support a claim of TDIU that was not previously considered, and as such, the claim is effectively re-raised. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file. 2. Obtain any outstanding VA medical records and associate them with the claims file. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for a VA spine and radiculopathy examination. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. The examiner must comment on the impact of the service connected disabilities (lumbar spine and lower left extremity), individually and in combination, on the Veteran's ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.). The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner. The VA examiner should report the extent of the Veteran's lumbar spine and radiculopathy of the lower left extremity disabilities in accordance with VA rating criteria. A rationale should be given for all opinions and conclusions rendered. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Thereafter, and after undertaking any additional development deemed necessary (including any development of the TDIU on an extraschedular basis, if so indicated), readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and given the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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). _________________________________________________ G. A. Wasik 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).