Citation Nr: 1805873 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 08-28 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for post-operative degenerative disc disease of the lumbar spine with radiculopathy of the lower extremities (low back disability). 2. Entitlement to a compensable evaluation for radiculopathy of the left lower extremity for the period prior to February 28, 2013. 3. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the left lower for the period after February 28, 2013. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 5. Entitlement to service connection for posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for diabetes mellitus, type II. 9. Entitlement to service connection for bladder cancer 10. Entitlement to service connection for skin cancer. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to October 1975. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from December 2007 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In January 2013, the Board remanded the issues of entitlement to an evaluation in excess of 40 percent for low back disability and entitlement to a TDIU to the RO for evidentiary development. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in October 2012, and a transcript of the hearing is of record. In a December 2015 decision, the Board denied entitlement to an evaluation in excess of 40 percent for post-operative degenerative disc disease of the lumbar spine with radiculopathy of the lower extremities (low back disability) and TDIU claims but granted a separate compensable evaluation for radiculopathy of the left lower extremity, effective February 28, 2013. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In an October 2016 Joint Motion for Partial Remand (JMPR) and Order, the Court vacated and remanded the Board's decision for compliance with the instructions in the opinion. The appeal has since been returned to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, remand is required to provide a new VA examination. As discussed above, in December 2015, the Board both granted in part and denied in part the Veteran's claim. In its December 2015 decision, the Board relied substantially on a January 2013 VA examination in determining that an evaluation in excess of 40 percent for a low back disability was not warranted. Notably, this VA examination did not show incapacitating episodes in the past year or evidence of unfavorable ankylosis. The Court's October 2016 JMPR reveals that the Board failed to consider a private medical opinion dated February 12, 2015 from Dr. S. Gardner indicating that the Veteran had "unfavorable ankylosis of the entire lumbosacral spine" and that the Veteran was "not currently fit for part or fulltime employment in a competitive atmosphere nor is he expected to ever regain that capacity." The Court directed the Board to discuss this evidence, and to consider whether an evaluation greater than 10 percent, and an effective date earlier than February 28, 2013, were warranted for the left lower extremity radiculopathy. Given the above, and the significant time period since the Veteran's most recent and pertinent VA examination, the Board finds that a new VA examination would be of considerable assistance in determining his claim. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Board notes that there are conflicting medical reports of record and further clarification in the form of a VA examination and opinion is necessary. The Veteran's TDIU claim is inextricably intertwined with the other remanded issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Remand of the TDIU claim is therefore required as well. The Board notes that the Veteran has filed a notice of disagreement as to a number of separate issues, including entitlement to service connection for posttraumatic stress disorder (PTSD), bilateral hearing loss, tinnitus, type II diabetes mellitus, bladder cancer, and skin cancer. When no Statement of the Case (SOC) has been issued, the Board is required to remand rather than refer the appealed issue. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected post-operative degenerative disc disease of the lumbar spine with radiculopathy of the lower extremities (low back disability) and service-connected radiculopathy of the left lower extremity. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's low back disability and accompanying radiculopathy of the left lower extremity under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. He or she should also indicate whether there is any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should further state the total duration of incapacitating episodes over the past 12 months and identify any/all neurological manifestations of the disability. Evidence used in making this determination should be highlighted. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner must also address the Veteran's lower back disability in terms of passive and active motion, and weight-bearing and non-weight bearing motion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. All prior reports, including the February 2015 findings of Dr. S. Gardner, should be discussed and/or reconciled, as necessary. 2. Issue a Statement of the Case (SOC) with respect to the issues of entitlement to service connection for PTSD, bilateral hearing loss, tinnitus, diabetes mellitus, bladder cancer, and skin cancer. The Veteran is notified that in order to perfect an appeal to the Board after the SOC is issued, a Substantive Appeal must still be filed. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence, including the issue of a TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative, if applicable, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).