Citation Nr: 1803441 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 09-42 354A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a cervical spine disability. 2. Entitlement to a total rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.L. Ivey, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1980 to July 1980 and from October 1980 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO in Cleveland, Ohio has jurisdiction over the appeal. The Veteran was afforded a Board hearing before the undersigned Veterans Law Judge in April 2016. These matters were previously remanded by the Board in September 2016. Although there was substantial compliance with those remand directives, another remand is necessary to afford the Veteran every consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In regard to the Veteran's cervical spine disability, the evidence suggests that she was treated for right shoulder problems since her last VA cervical spine examination in September 2016. Records are unclear as to whether the shoulder problem is reflective of cervical spine radiculopathy or is a completely separate musculoskeletal problem. See, e.g., December 2016 VA treatment note (suggesting a diagnosis of right arm cervical radiculopathy); January 2017 VA treatment note (attributing right shoulder pain to tendinosis); March 2017 VA physical therapy note (suggesting it was difficult to determine if symptoms were limited to shoulder pathology or related to the cervical spine). Moreover, evidence dated prior to the appeal period suggests the Veteran may have previously been worked up for cervical radiculopathy. See, e.g., June 2001 VA pain clinic note ("seen in clinic 3/2001 - recommended EMG/NCV studies to r/o cervical radiculopathy (EMG study from 1999 normal)"). As such, a VA peripheral nerves examination is necessary on remand. In regard to the Veteran's claim for TDIU, she has submitted two VA Forms 21-8940 during the appeal period and they are not consistent. Compare August 2011 VA Form 21-8940 to November 2016 VA Form 21-8940. The Board observes that the employment information contained in the November 2016 VA Form 21-5940 is not supported by the evidentiary record, which shows periods of unemployment during the alleged dates of employment and several moves across the country. Further, it does not appear that the appropriate employer development was completed. On remand, the AOJ is directed to send the Veteran another VA Form 21-8940. Please ask the Veteran to include information for all employers during the appeal period (i.e., since August 2007) to the best of her knowledge. In addition, updated treatment notes should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain any missing VA treatment notes and associate them with the claims file. 2. Send the Veteran another VA Form 21-8940 and ask that she complete it to include information for all employers during the appeal period (i.e., since August 2007) to the best of her knowledge. Thereafter, conduct all appropriate employer development. 3. Schedule the Veteran for a VA peripheral nerves examination to determine if her cervical spine disability results in cervical radiculopathy. The entire claims file and a copy of this REMAND must be provided to and reviewed by the examiner. All appropriate tests should be conducted. The examiner should clearly state whether the Veteran has had cervical radiculopathy at any point during the appeal period (since August 2007) and, if so, should comment on the severity of the condition throughout that period. The examiner should discuss the treatment notes discussed above: December 2016 VA treatment note (suggesting a diagnosis of right arm cervical radiculopathy); January 2017 VA treatment note (attributing right shoulder pain to tendinosis); March 2017 VA physical therapy note (suggesting it was difficult to determine if symptoms were limited to shoulder pathology or related to the cervical spine) and June 2001 VA pain clinic note ("seen in clinic 3/2001 - recommended EMG/NCV studies to r/o cervical radiculopathy (EMG study from 1999 normal)"). 4. After completing the above development and any other additional development deemed appropriate, readjudicate the issues on the appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. 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. 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). _________________________________________________ S. BUSH 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).