Citation Nr: 18142105 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 12-33 617 DATE: October 16, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. REFERRED The issues of entitlement to service connection for a cervical disorder; a bilateral upper extremity disorder, to include neuropathy; and fecal and urinary incontinence, to include as secondary to a back disability, were raised by the Veteran in March 2010 written statements and testimony offered in October 2015. These issues were referred to the RO in December 2015, however, no action was taken. Hence, these issues are not currently developed or certified for appellate review. Accordingly, they are again referred to the RO for prompt and appropriate consideration. REASONS FOR REMAND The Veteran served on active duty from January 1971 to January 1974. The Veteran is claiming entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. He is currently service connected for thoracolumbar scoliosis with degenerative joint and degenerative disc disease; residuals of a right thigh gunshot wound with mid shaft femur fracture residuals, extremity shortening and retained foreign bodies; and incomplete left and right lower extremity sciatic nerve paralysis. At the October 2015 Board hearing, the Veteran testified that he became too disabled to work in around 2010. He stated that he had been the Chief of Police in his small town, and that back pain, hip pain from gunshot wound residuals, and difficulty getting up and ambulating prevented him from being able to continue in his job. In December 2015 the Board remanded this issue. The issues of entitlement to service connection for a cervical disorder, a back disorder other than scoliosis, a bilateral upper extremity disorder to include neuropathy, and fecal and urinary incontinence, to include as secondary to a back disability, were referred to the agency of original jurisdiction. The Board directed that these claims needed to be adjudicated prior to readjudication of the claim of entitlement to a total disability rating based on individual unemployability. The Board also directed that an examination be provided to the Veteran with a board-certified neurosurgeon to discuss whether the Veteran had any disability involving the cervical spine, upper extremities, back, and urinary or fecal incontinence, and their possible relationship to service or service-connected disabilities. In March 2016, the Veteran was afforded a VA examination with a VA general practitioner; not a neurosurgeon as directed by the Board. She diagnosed the Veteran with degenerative arthritis, degenerative disc disease, left sciatica, scoliosis of the spine, and moderate left lower extremity radiculopathy. No pathology indicating upper extremity peripheral neuropathy was noted. This general practitioner wrote that the Veteran’s other lumbar diagnoses, such as degenerative disc disease, were as likely as not related to service and discussed how the scoliosis and leg length discrepancy would put asymmetric stress on the spine. The Veteran also reported having neck pain all the time with pain going down his left shoulder, and that he had a decreased range of cervical motion. The general practitioner diagnosed the Veteran with cervical degenerative disc disease, but found no other neurologic abnormalities related to the cervical spine. The examiner did opine that a cervical spine disability was at least as likely or not related to service. Regarding the Veteran’s ability to work, the examiner wrote that while the Veteran would not be able to do arduous or unlimited work, he could do work with some accommodations and could work in a sedentary capacity. The examiner did not define what she meant by “sedentary capacity.” At a March 2016 VA examination for intestinal conditions performed by the same physician, the Veteran reported some problems with having an inadvertent bowel movement when urinating. He also reported having urinary urgency and leakage. Physical examination was normal, and the examiner wrote that he felt the Veteran had other physical problems causing difficulty getting to the bathroom in a timely fashion, and this was resulting in the fecal incontinence that occurred before he could get to the toilet. The examiner wrote that while the Veteran had fecal leakage while urinating, there had been no medical work up for this problem, and it would be speculation to discuss the source of this problem. The examiner also diagnosed the Veteran with urinary incontinence, but said that it was less likely than not related to service because the Veteran had never been evaluated by a urologist and there was no evidence that the leakage was due to back pain. In a January 2018 rating decision, the Veteran’s service-connected thoracolumbar scoliosis was recharacterized as thoracolumbar scoliosis with degenerative joint and disc disease, in order to include the additional lumbar spine diagnoses found at the March 2016 VA examination. The Veteran’s evaluation remained at 40 percent. Significantly, a rating decision has not been issued addressing the referred issues of entitlement to service connection for a cervical condition, a bilateral upper extremity disorder to include neuropathy, and fecal and urinary incontinence, to include secondary to a back disability. Because the Board specifically indicated that these issues should be adjudicated prior to readjudicating the issue of entitlement to a total disability rating based on individual unemployability, the issue is again remanded so that it can be readjudicated following the issuance of a rating decision addressing the referred issues. The Board also directs that a new VA examination be conducted with a neurosurgeon or neurologist, as directed in the prior remand. A neurosurgeon or a neurologist is to provide a comprehensive discussion of the Veteran’s overall impairment from service-connected disabilities, including reconciling some of the unclear findings of the prior examiner. The March 2016 VA examiner wrote that the Veteran had never been treated by a urologist and that this was part of her reasons for finding that the disorder was not related to his other disabilities. Significantly, the Veteran’s VA treatment records do show that he has received treatment from a urologist for urinary problems, including pain with urination, slow stream, and nocturia. It is also unclear to the Board why the March 2016 examiner found that the Veteran was so physically impaired that he was unable to make it to the bathroom to use the toilet, but that he was also was able to perform a full day of work if it was in a sedentary capacity. The March 2016 examiner also acknowledged that the finding that the Veteran’s physical abilities “may need to be modified” with regard to his right lower extremity disorder if examined by a qualified right lower extremity specialist. This suggests that the March 2016 VA examiner did not feel comfortable evaluating the Veteran’s lower extremity disorders. Hence, this again needs to be evaluated, and the Board stresses the importance of having the examination performed by a qualified specialist. Lastly, the January 2018 supplemental statement of the case noted that were the Veteran to be granted entitlement to service connection for a cervical spine disability, rated as 20 percent disabling, he would have a combined evaluation of 70 percent and would be eligible for a total disability rating based on individual unemployability. The Board finds, however, that the Veteran would be eligible for a total disability rating based on individual unemployability even prior to the effective date that will be assigned for his cervical spine disorder, because the Veteran already has a combined evaluation of 60 percent, all based on disabilities which stem from the same right medial gunshot wound and fractured femur. See 38 C.F.R. § 4.16(a) (For the purpose of finding that a veteran has one 60 percent disability, disabilities resulting from common etiology or a single accident may be considered as one disability.). The matter is REMANDED for the following action: 1. Obtain all available records from the Carl Vinson VA Medical Center in Dublin, Georgia since January 2017 and from the Tifton VA Clinic since July 2009. If any such records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After completion of the above, schedule an evaluation with a board-certified neurosurgeon or neurologist. The neurosurgeon or neurologist is to be provided access to all VBMS and Virtual VA/Legacy files. The neurosurgeon or neurologist must specify in the report that these records have been reviewed. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. The neurosurgeon or neurologist must address the following: a) Diagnose any disability involving the upper extremities, as well as urinary and fecal incontinence. For any diagnosis made, the neurosurgeon or neurologist must opine whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed disability i) had its onset during, or is otherwise etiologically related to, the Veteran’s active service, or ii) was caused or aggravated by one of his service-connected disabilities. The Veteran is currently service-connected for thoracolumbar scoliosis and degenerative disc disease; right thigh gunshot wound residuals with shortening of the right lower extremity; and bilateral lower extremity paralysis of the sciatic nerve. He has also been found by a March 2016 VA examiner to have a cervical spine disorder which was as likely as not related to service. The Board notes that the Veteran has been treated by a urologist for urinary urgency, pain, and weakness of stream, and he has reported having problems with both fecal and urinary incontinence. b) Evaluate the current nature and severity of the Veteran’s thoracolumbar spine disorder, cervical spine disorder, lower extremity paralysis, and any other associated neurological symptoms. c) The neurosurgeon or neurologist must discuss the functional effects of the Veteran’s service-connected disabilities relative to his ability to obtain and maintain substantially gainful employment. The neurosurgeon or neurologist must discuss the limitations and restrictions imposed by the Veteran’s service-connected disabilities on such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling. The neurosurgeon or neurologist must address the lay statements of the Veteran regarding having been forced to retire from the Police due to his back pain and difficulty walking. If the examiner finds that the appellant can perform sedentary employment notwithstanding his service connected disorders the examiner must address whether the appellant can work at a job where he is primarily sitting down, lifting no more than 10 pounds at a time, and occasionally lifting or carrying articles like docket files, ledgers, and small tools. A complete and fully explanatory rationale must be provided for each and every opinion offered. If any opinion cannot be rendered without resorting to speculation, the neurosurgeon or neurologist must 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. 3. Issue a rating decision on the referred issues of entitlement to service connection for a cervical disorder, a bilateral upper extremity disorder to include neuropathy, and fecal and urinary incontinence. The Veteran is advised that the Board will not exercise appellate jurisdiction over any issue which is not timely perfected. 4. Thereafter, readjudicate the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. If the decision remains adverse to the appellant issue a supplemental statement of the case. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel