Citation Nr: 1805478 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-31 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for thoracolumbar degenerative disc disease with lumbar strain prior to July 15, 2008, and rating in excess of 20 percent for the periods from May 31, 2013 to February 12, 2014 and from May 1, 2014 to the present. 2. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy. 3. Entitlement to an initial rating in excess of 40 percent for right lower extremity radiculopathy effective January 28, 2013. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 2001 to June 2005 and from October 2007 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the Veteran underwent surgery on his lumbar spine. As a consequence he was awarded a temporary total rating for his lumbar spine effective February 12, 2014 to May 1, 2014, after which he was again assigned a 20 percent rating. The Veteran has not indicated any disagreement with the period of time for which he was granted a temporary total evaluation, and therefore, this appeal concerns his schedular evaluation. See Locklear v. Shinseki, 24 Vet. App. 311 (2011). The Veteran requested a hearing before a Veterans Law Judge in connection with his appeal. A hearing was scheduled for April 2017, but the Veteran did not appear. The Board notes that the March 2017 notification regarding the hearing was returned as undeliverable; however, there is no indication in the record that the Veteran informed VA of a new address and the notification letter was sent to his last known address of record. Hyson v. Brown, 5 Vet. App. 262 (1993) (discussing a claimant's duty to inform VA of his or her current address). Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (e) (2017). The Veteran reported that he cannot work because of his service-connected disabilities. Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is necessary to provide the Veteran with a new VA examination addressing his thoracolumbar spine degenerative disc disease and lower extremity radiculopathies. Since the Veteran's most recent examinations in May 2013 and November 2013, the U.S. Court of Appeals for Veteran's Claims (the Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) concerning the adequacy of VA orthopaedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Sharp at 35. In light of these decisions, the Board finds that a new VA examination should be provided addressing the Veteran's thoracolumbar spine degenerative disc disease and related radiculopathies. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although there is an indication in the claims file that the Veteran failed to appear for VA examinations in connection with his lumbar spine disability, the record shows that these examinations were requested by the RO in Cleveland, Ohio during a period of time when the Veteran's address was listed as being in Oregon. The Veteran's representative reports in the November 2017 informal hearing presentation that the Veteran did not receive notification of the scheduled examinations and unclear whether notification of the examinations was sent to the Veteran's address of record. Further development is also necessary regarding the Veteran's claim for TDIU as there is insufficient evidence of record concerning his education and employment history. A new VA Form 21-8940 Application for Increased Compensation Based on Unemployability should be completed. As this matter is being remanded, all outstanding VA medical records should be obtained. Sullivan v. McDonald, 815 F.3d 786 (2016). Moreover, the Veteran should be given an opportunity to identify any private medical records he would like considered in connection with his appeal. 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940 Application for Increased Compensation Based on Unemployability. 2. Obtain all outstanding VA medical records and ask the Veteran to provide an authorization to obtain any private medical records he would like considered in connection with the appeal. 3. After completing the development directed in paragraph 2 above, schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his lumbar spine degenerative disc disease and bilateral lower extremity radiculopathies. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present, as well as any associated neurologic problems. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above development, including any additional development that may be warranted, readjudicate the appeal. 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). _________________________________________________ STEVEN D. REISS 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).