Citation Nr: 1803329 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 40 percent for chronic lumbar strain. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Peden, Associate Counsel INTRODUCTION The Veteran had active service from July 1977 to February 1982. This current matter comes to the Board of Veteran's Appeals (Board) on appeal from a rating decision dated March 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased rating claim, pursuant to Rice. In view of the foregoing, the TDIU issue will be considered by the Board in the remand below. In February 2014, the Veteran requested a Board videoconference hearing. In July 2014, the Veteran received notification that a travel board hearing was scheduled for August 26, 2014, but he did not appear at the hearing and did not explain his absence. As such, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704 (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After review of the record, the Board regrettably finds that a remand for further development is warranted. The record reflects that the AOJ scheduled the Veteran for a VA examination to assess the current severity of his chronic lumbar strain. This examination was completed in January 2015. The Board finds this opinion to be inadequate for rating purposes as the examiner noted that IDVS was present but failed to address the number of incapacitating episodes, if any, and their frequency as required by the rating criteria. Further, the examiner noted that the Veteran had stopped working as a result of his back disability but did not give an opinion as to the effect of the Veteran's back disability on his employability. Thus, on remand, the examiner should give an opinion on the Veteran's disability on his employment, and the AOJ should provide the Veteran with a notification letter concerning his claim of entitlement to TDIU that complies with the notification requirements of 38 U.S.C. § 5103 (a) (2012), 38 C.F.R. § 3.159 (b) (2017) and VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to the Veteran, for completion and return to VA. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a notification letter concerning his claim of entitlement to TDIU that complies with the notification requirements of 38 U.S.C. § 5103 (a) (2012), 38 C.F.R. § 3.159 (b) (2017). Specifically, this letter must set forth the criteria for establishing entitlement to a TDIU and include information on the evidence required in this regard, the Veteran's and VA's respective duties for obtaining evidence, and how VA determines disability evaluations and effective dates. The RO should also provide a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to the Veteran, for completion and return to VA. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to his claim and provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with the record. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected chronic lumbar strain. The electronic claims file must be made accessible to the examiner(s) for review. The examiner should opine as to the current nature and extent of the Veteran's disability. In rendering this opinion, the examiner must address the following: a. the severity of the Veteran's service-connected chronic lumbar strain, including whether he has ankylosis of his lumbar spine and, if so, whether it is favorable or unfavorable, and the number of weeks, if any, during the past 12 months that he had "incapacitating episodes" (defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician) and b. the functional impairment of the service-connected low back disability, including the effect of this disorder on the Veteran's employability A complete and thorough rationale must be provided for all opinions. If the examiner cannot provide an opinion without resorting to speculation then he or she must provide a complete and thorough rationale as to why an opinion cannot be provided. 4. Then, readjudicate the claims on appeal, as are listed on the title page of this Remand. If either claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) that includes a summary of the evidence and discussion of all pertinent regulations. The Veteran and his representative should be given an opportunity to respond to the SSOC before returning the claims file to the Board for further appellate consideration. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2017). He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C. § 7252 (2012). 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).