Citation Nr: 18142117 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 04-36 087 DATE: October 12, 2018 REMANDED Entitlement to a rating in excess of 40 percent since March 11, 1999, for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since May 28, 1999, is remanded. REASONS FOR REMAND The Veteran had active service from September 1967 to May 1969. The procedural histories of these claims have been thoroughly set forth in the December 2006, January 2008, September 2008, February 2010, August 2010, April 2011, February 2012, September 2012, June 2013, March 2014, February 2015, and November 2015 Court of Veterans Appeals (CAVC or Court) and Board remands and decisions. 1. Entitlement to a rating in excess of 40 percent since March 11, 1999, for a lumbar spine disability is remanded. Throughout the appeal, the Veteran has contended his service-connected lumbar spine disability warranted a higher disability rating because of the effects of the pain medication he takes to relieve his back pain. The effects of pain medication are not contemplated in the schedule criteria for lumbar disabilities. The Veteran’s claim for a higher rating for his lumbar disability for the entire appellate period is therefore remanded to the Director of Compensation for extraschedular consideration. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. In addition, the Veteran contends that he has been unable to obtain and maintain gainful employment because of the effects of his pain medication. Personnel records from his last employer indicate the Veteran stopped working in November 1998, but received compensation through May 1999 until his disability-related retirement became effective on May 27, 1999. Therefore, the period on appeal for the TDIU is as noted on the title page. The severe impact of the Veteran’s pain medications on his employment capabilities is relevant to both the rating claim and the TDIU claim, thus rendering these claims intertwined. Brambley v. Principi, 17 Vet. App. 20 (2003) (noting the inextricably intertwined nature of a decision on extraschedular consideration and a TDIU claim). The matters are REMANDED for the following action: 1. Refer the increased rating claim to the VA’s Director of Compensation for adjudication on an extraschedular basis. The Director is requested to provide adequate reasons and bases for any and all decisions. In evaluating the Veteran’s claim, the Director is specifically asked to: (a.) consider whether the Veteran warranted an extraschedular rating for his lumbar disability prior and subsequent to the September 2002 and September 2003 schedular changes; (b.) consider the combined impact of the Veteran’s service-connected disabilities (i.e., chronic lower dorsal and lumbosacral strain with degenerative disc disease; post-operative subtotal gastrectomy; and bilateral lower extremity radiculopathy), as well as the impact of the medication treatment for these disabilities, on the Veteran’s ability to obtain and maintain gainful employment; (c.) discuss his current occupational capacity, given his employment history as a mail clerk with the post office. * The Director should note that the Veteran was awarded Social Security disability insurance (SSDI) benefits effective October 23, 1998. See “Medical Treatment Records – Furnished by SSA,” received February 16, 2000, page 9 of 42. * The Director should note that February 1999 VA treatments records indicate the treating physician noted that a “strong element of physical dependence ” to Percocet could not be excluded. See “Medical Treatment Record – Government Facility,” received May 21, 1999, page 13 of 29. * The Director should note that the Veteran retired from the U.S. Postal Service due to disability effective May 27, 1999. See “Correspondence,” received February 12, 2014, page 2 of 25. The Veteran’s last day of work was November 11, 1998. See “Third Party Correspondence,” received February 12, 2014, page 2 of 9. * The Director should note that in March 2000 the Veteran’s treating physician indicated the Veteran’s disability was “ longstanding ” and “totally disabling.” See Medical Treatment Record – Government Facility,” received March 27, 2001, page 1 of 8. * The Director should note that September 2003 VA treatment records indicate the Veteran was on pain medication “chronically.” See “Medical Treatment Record – Government Facility,” received September 9, 2004, page 1 of 2. * The Director should note the January 2008 Joint Motion for Remand, where the parties agreed the Veteran was competent to relate observable features or symptoms of his condition, to include contentions that his back disability and the corresponding effects of the pain medication prescribed caused marked interference with employment. See “CAVC Decision,” received February 5, 2008, page 5 of 8. * The Director should note that in March 2008 the Veteran’s treating physician indicated the Veteran had constant severe pain and had been unable to work in any capacity because of his conditions. See “Medical Treatment Record – Non-Government Facility,” received March 12, 2008, page 1 of 2. * The Director should note the November 2008 VA examiner opined the Veteran’s evaluation did not indicate an increase in the severity of the Veteran’s disability and that the Veteran was capable of “mild physical activity and certainly gainful sedentary employment[.]” See “VA Examination,” received November 3, 2008, page 3 of 3. * The Director should note the January 2009 opinion from the Veteran’s primary physician, indicating that the Veteran’s back disability caused “constant and severe pain” that required narcotic pain medication and resulted in the Veteran being “unable to work in any capacity” because of his condition. See “Medical Treatment Record – Non-Government Facility,” received February 18, 2009. * The Director should note the November 2009 medical opinion of Dr. P. C., who opined the Veteran’s severe low back pain, degenerative disc disease, and associated lumbar radiculopathy prevented the Veteran from finding and securing gainful employment. See “Medical Treatment Record – Non-Government Facility,” received December 17, 2009, page 6 of 7. * The Director should note the January 2014 medical opinion of the Veteran’s treating physician, who opined that the Veteran was “one hundred percent disabled and incapable of working in any gainful capacity.” See “Medical Treatment Record – Non-Government Facility,” received January 27, 2014. * The Director should note the April 2014 decision to deny TDIU under 4.16 (b). See “VA Memo,” received April 29, 2014. * The Director should note the February 2016 VA medical examination, when the examiner noted the Veteran’s pain medication may cause drowsiness, sleepiness, and poor thought process and concentration. See “C&P Exam,” received February 1, 2016. * The Director should note the September 2018 faxed transmission from the Veteran’s legal counsel, with legal and factual argument. See fax cover sheet, dated as received on September 5, 2018. 2. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The appellant 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 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel