Citation Nr: 1805994 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-18 712A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for residuals of a cervical injury. 2. Entitlement to specially adapted housing or special home adaptation grant. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1987 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction is now with the RO in Montgomery, Alabama. The Veteran has raised the issue of entitlement to TDIU due in part to his cervical spine disability during the course of the appeal period, to include in a notice of disagreement received in November 2007. As such, the issue is considered part and parcel with the Veteran's pending claim for a higher disability rating for his cervical spine disability. 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 The Veteran's cervical spine disability is rated 20 percent disabling under Diagnostic Code (DC) 5237 for cervical strain. He contends that the current severity of his cervical spine disability warrants an increased evaluation. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claim can be adjudicated on the merits. The Veteran was last afforded VA examination of his cervical spine in July 2007. He contends that factors such as additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups were not considered in his July 2007 VA examination. See November 2007 Notice of Disagreement. He also indicated that his facet joints are deteriorating over time. See Correspondence received in January 2014. Given these allegations of worsening symptoms, the Board believes an updated VA examination is necessary before the question as to whether a higher rating is warranted can be decided. Additionally, the Veteran reported that during the course of the appeal, he sought treatment from Dr. E.T. and had an X-ray performed in 2011. However, it appears that all updated treatment records have not been associated with the claims file. On remand, the Veteran should be afforded an opportunity to submit, or authorize VA to obtain on his behalf, any pertinent records of private treatment. Updated VA treatment records since February 2008 should also be associated with the claims file. As noted in the Introduction above, the Veteran has raised the issue of entitlement to TDIU as part of his initial rating claim for his cervical spine disability. See a November 2007 Notice of Disagreement (indicating he has been unemployable due to his service-connected disabilities). Whether a TDIU may be awarded cannot be resolved at this time, as the level of severity of the Veteran's cervical spine disability remains unclear. As such, a decision on the issue of entitlement to a TDIU is deferred so that the Veteran's cervical spine disability can be assessed at a VA examination. Harris v. Derwinski, 1 Vet. App. 180 (1991). Regarding entitlement to specially adapted housing or special home adaptation grant, a certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for permanent and total service-connected disability. As the Veteran is currently not receiving compensation for permanent and total service-connected disability, and the issues of entitlement to an increased rating and TDIU remain on appeal, the issue of specially adapted housing also cannot fully be adjudicated until these claims are settled. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to his increased rating claim for residuals of a cervical spine injury. After obtaining necessary authorization from the Veteran, all outstanding records should be obtained, to include all private and VA treatment records from 2008 to the present. 2. After obtaining any outstanding records, the Veteran should be afforded an updated VA examination with an appropriate examiner to assess the current severity of his cervical spine disability. The claims folder and a copy of this remand must be made available to the examiner. The Veteran's cervical spine should be tested for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should note the degree of motion at which the Veteran experiences pain. If ankylosis is found, the examiner should state whether it is favorable or unfavorable. The examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the conditions. Also, all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported or estimated. If the examination does not take place during a flare or after repetitive use, the examiner must glean information regarding the severity, frequency, duration and functional loss manifestations during such times from the Veteran, medical records, and other available sources to provide the requested estimations in degrees of limitation of motion. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. If estimation cannot be provided, an explanation should be given as to why this is the case. The examiner should also identify all neurologic manifestations of the Veteran's service-connected cervical spine disability, to include sensory loss, radiculopathy, or bowel, bladder, or erectile dysfunction. For any neurological impairment found to be associated with the service-connected cervical spine disability, the examiner is asked, to the extent possible, to identify the date of onset and the severity thereof. If for any reason 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 explain why that is so. 3. Invite the Veteran to complete a formal application for TDIU. 4. After completing the above actions, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. 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 (West 2012). _________________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).