Citation Nr: 1803430 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-12 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating higher than 20 percent for service-connected spondylolysis and spondylolisthesis of the lumbosacral spine with arthritis (lumbar spine disability) prior to May 7, 2012 and beginning July 1, 2012; and higher than 40 percent on and after August 15, 2012. 2. Entitlement to an extension of a temporary total rating due to convalescence (TTD) for lumbar spine disability past June 30, 2012. 3. Entitlement to a total disability rating due to individual unemployability as a result of service-connected disability (TDIU), to include on an extraschedular basis. 4. Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably in the U.S. Navy from July 1968 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2009, July 2012, and December 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2011, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge, and a transcript of that proceeding is of record. In a November 2011 Decision and Remand, the Board denied the Veteran's service connection claim for right hip arthritis, and remanded the lumbar spine disability increased evaluation claim for further development. This matter was again remanded by the Board in February 2014 and June 2016, and has since been returned for further appellate review. In July 2012 the Veteran filed a claim for a TDIU due to his service-connected lumbar spine disability. A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, in light of the Veteran's contentions, the Board finds that the issue of TDIU is raised by the record, is part and parcel of the higher rating claim, and is properly before the Board. Procedurally, TDIU was denied in a December 2016 rating decision and addressed in a December 2016 supplemental statement of the case (SSOC). A July 2016 rating decision increased the evaluation of the Veteran's lumbar spine disability from 20 to 40 percent effective August 15, 2012. As higher evaluations are available, the issue of entitlement to higher evaluations for the entire period on appeal remains. AB v. Brown, 6 Vet. App. 35, 38 (1998). The Board notes that a December 2016 addendum opinion regarding the Veteran's degree of functional impairment due to service-connected disabilities is located in the Legacy Content Manager. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In this case remand is again required to afford the Veteran an adequate VA examination, for AOJ consideration of newly received evidence, for AOJ readjudication of the Veteran's TTD claim, to obtain additional treatment records, for issuance of a statement of the case, and for referral of the issue of entitlement to an extraschedular TDIU to the Director of Compensation and Pension. First, remand is required for another VA examination that adequately explains the nature and severity of the Veteran's lumbar spine disability. When VA undertakes to obtain an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An examiner's conclusion that an opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Veteran underwent a VA spine examination again in August 16, 2016, and the examiner stated they were unable to describe the additional functional loss during a flare up in terms of range of motion without resorting to mere speculation because there was insufficient medical evidence upon which to base the opinion. The examiner did not consider the Veteran's lay testimony when concluding that there was insufficient medical evidence upon which to base the opinion. The examiner did not mention the August 2016 spinal cord stimulator placement, and examination was also conducted prior to the Veteran's second spinal cord stimulator surgery in December 2016. Also, the examiner noted that the Veteran had symptoms due to radiculopathy of intermittent and constant mild left lower extremity pain, but the examiner then indicated that there was only radiculopathy of the right side. Notably, an April 2015 private treatment record from Tennessee Valley Pain Management center documents a positive left lower extremity straight leg test at 65 degrees seated. Thus, remand is required for another examination that clarifies then severity of the Veteran's service-connected lumbar spine disability. Second, remand is required for AOJ consideration of newly received evidence in the first instance. See 38 C.F.R. § 19.31 (which stipulates that the AOJ will furnish the Veteran an SSOC if the AOJ receives additional pertinent evidence after a statement of the case (SOC) or the most recent SSOC has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board). The most recent December 2016 SSOC addressed VA treatment records from April 2012 through December 2016, and private treatment records from December 2011 to December 2013. Since that time, the Veteran has submitted additional private treatment records through May 2017, including treatment records pertaining to two back surgeries. Also, additional VA treatment records through June 2017 have been added that also contain relevant information pertaining to the Veteran's claims on appeal. In August 2017 VA contacted the Veteran to see if he desired to waive AOJ review of this evidence, and he responded that he would like the matter remanded to allow the AOJ to consider the newly received evidence in the first instance. Third, remand is required for AOJ readjudication of the Veteran's TTD claim. The June 2016 Remand directed the AOJ to readjudicate the issue of entitlement to TTD past June 30, 2012. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board noted that an SOC or SSOC on the merits of that issue had not been provided. The November 2014 SSOC focused exclusively on why an increased rating for the back, to include an extra-schedular rating, was not warranted. Following remand, the December 2016 SSOC also did not address the merits on the issue of entitlement to a TTD past June 30, 2012, and instead said that the additional evidence added did not pertain to that issue therefore it was not going to be addressed. As the SSOC did not comply with the remand directives, and as the Veteran's TTD claim has not yet been readjudicated, remand is again required. Fourth, remand is required for issuance of an SOC for the claim for service connection for diabetes mellitus, type II. In July 2017 the Veteran submitted a notice of disagreement to a July 2017 rating decision that denied entitlement to service-connection for type II diabetes. A review of the Veterans Appeals Control and Locator System shows that there is no active appeal for this issue, and an SOC has not been issued. Therefore, on remand, an SOC should be issued, and the Veteran should be afforded an opportunity to submit a substantive appeal. See Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Fifth, the record demonstrates the Veteran receives regular care from both VA and private medical providers. It is likely that since the last remand there now exist additional, relevant treatment records. On remand, appropriate efforts should be taken to identify and obtain outstanding and relevant private treatment records from May 2017 onward. Last, the Board finds that the issue of entitlement to a TDIU on an extra-schedular basis should be referred to the Director of Compensation and Pension for consideration. A TDIU also may be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in § 4.16(a). Here, the Veteran has more than one service-connected disability, but his combined disability rating is less than 70 percent. The Veteran is in receipt of Social Security Administration benefits for the primary diagnosis of "disorders of back" and a secondary diagnosis of diabetes mellitus. The 2016 VA examiner reported that the Veteran stopped working secondary to back pain with radiating left lower extremity radicular pain, and that he was limited in both standing and sitting. The Veteran has undergone multiple surgeries related to his back during the course of this appeal, has been involved in extensive physical therapy, and has been on strong narcotic medication to control pain. While the Veteran has been working part-time as an adjunct professor, from his reported income it is unclear whether the income amount is enough to constitute marginal employment. Thus, the Board finds that entitlement to a TDIU has been raised on an extraschedular basis and referral for consideration by the Director of Compensation and Pension is warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment from May 2017 onward. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records that have not already been submitted. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of his service-connected lumbar spine disability. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner is requested to clarify the nature and extent of any left-or right-lower extremity radiculopathy that the Veteran may have. The examiner's attention is directed to the April 2015 private treatment record documenting a positive left lower extremity straight leg raise and notations of mild radicular symptoms of constant and intermittent pain on the August 2016 VA examination report. With regard to the additional degree of functional limitation during flares, the examiner must address the Veteran's competent lay testimony regarding additional impairment during flares. If the examiner concludes they cannot provide an answer without resort to mere speculation due to insufficient evidence, the examiner must explain why the Veteran's testimony regarding additional symptomatology is insufficient evidence. Comment on the Veteran's ability to function in an occupational environment. Describe functional impairment caused by the service-connected lumbar spine disability with radiculopathy. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Issue a statement of the case addressing the issues of entitlement to service connection for diabetes mellitus type II. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal. The AOJ should advise the Veteran that the matter will not be returned to the Board for appellate consideration of the issue following the issuance of the statement of the case unless he perfects his appeal 6. Refer the issue of entitlement to a TDIU to the Director of the Compensation and Pension Service for extraschedular consideration. Place a copy of the Director's decision in the claims file. 7. Then, readjudicate the claims of on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case, allow appropriate time for response, and return the case to the Board. The supplemental statement of the case must address the merits of each issue, to specifically include TTD as this issue has not been adjudicated on the merits in a statement of the case or supplemental statement of the case to date. 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 also 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 (2012). _________________________________________________ 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.A. § 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).