Citation Nr: 1805120 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 06-04 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbar strain. 2. Entitlement to an initial rating in excess of 10 percent for left knee strain. 3. Entitlement to an initial rating in excess of 10 percent for right knee strain. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to December 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for lumbar strain with an initial 10 percent rating effective August 26, 2004. Service connection was also granted for bilateral knee strain with noncompensable ratings effective August 26, 2004. An October 2004 rating decision assigned an earlier effective date of December 14, 2003 for all three disabilities. A November 2005 rating decision increased the knee ratings to 10 percent, effective August 26, 2004. In May 2017, the RO assigned an earlier effective date of December 14, 2003. The Board remanded these claims for additional development in August 2013. 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 additional delay, a remand is necessary to ensure that due process is followed. VA treatment records indicate that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). See VA treatment records from February 2012 (indicating that the Veteran was receiving social security disability benefits); and December 2008 (indicating that the Veteran received $600 monthly from social security disability benefits). This appears to be different than the state disability benefits previously noted in the August 2013 Board Remand. See March 2008 VA treatment records (indicating that the Veteran was applying for benefits; September 2005 VA treatment records (indicating state disability benefits were terminated). In the Board's August 2013 Remand, the RO was directed to obtain records from any state agency which awarded the Veteran disability benefits. Pursuant to the directives, the RO requested records from the State Disability Insurance of California. In March 2016 the RO informed the Veteran that the response received from the State of California indicated a release was needed to obtain the information. The RO provided the actual release form to the Veteran, but she did not respond. To date, the Veteran's SSA records have not been obtained by VA and it appears that such records may be relevant to the appeal. The duty to assist requires VA to obtain potentially relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, a remand for such records is necessary. The Board also finds that an addendum to the May 2015 examination report is needed. On page 13 of the report, the examiner indicated IVDS was not present and did not provide any findings regarding incapacitating episodes. However, on page 17, the examiner noted that diagnoses of IVDS are of record and indicated that the Veteran's lumbar strain has progressed to include IVDS. On remand, VA should obtain an addendum opinion clarifying whether IVDS is present and, the extent and frequency of any incapacitating episodes. Finally, in light of the additional medical records added to the file since the claim was last remanded, and the development directed with this remand, the examiner is asked to provide updated commentary on the effects of the Veteran's service-connected lumbar and bilateral knee strains on her ability to function in an occupational environment. Accordingly, the case is REMANDED for the following action: 1. Update the file with VA treatment records since May 2017. 2. Obtain from the SSA all records relating to the Veteran's claim for disability benefits. All efforts made to obtain these records must be documented. If the records are unavailable the Veteran must be notified. 3. Thereafter, return the claims file to the May 2015 examiner for an addendum. If that examiner is not available, the file should be provided to another qualified VA examiner, including a copy of this remand (and any additional evidence obtained on remand), for the requested addendum. A physical examination is left to the discretion of the examiner. a) The examiner is asked to clarify whether the Veteran has a diagnosis of IVDS. If so, the examiner is asked to state whether the Veteran has any incapacitating episodes due to IVDS, and to describe the frequency and duration of such episodes. The examiner is advised that an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. b) The examiner is to elicit from the record, the Veteran's reported work and educational history. The examiner is asked to specifically comment on the effects of the Veteran's service-connected lumbar and bilateral knee strains on her ability to function in an occupational environment. The examiner must discuss the underlying rationale for all opinions. If the examiner is unable provide an opinion without resort to speculation, then he or she must explain why. 4. Thereafter, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and give the Veteran and her representative the opportunity to respond. 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 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). _________________________________________________ D. JOHNSON 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).