Citation Nr: 18148749 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 06-29 643 DATE: November 8, 2018 REMANDED The claim of entitlement to a disability rating greater than 40 percent for service-connected lumbar spine disability, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), prior to August 29, 2006, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to July 1985. This appeal to the Board of Veterans' Appeals (Board) initially arose from a February 2005 rating decision in which the RO, inter alia, denied the Veteran's claim for a rating greater than 20 percent for his service-connected lumbar spine disability. The Veteran disagreed with that determination, and this appeal ensued. In January 2009, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In March 2009 and March 2011, the Board remanded the claim for a rating greater than 20 percent prior to November 3, 2004, and a rating greater than 30 percent from November 3, 2004, for the lumbar spine disability. In a June 2012 decision, the Board expanded the appeal to include the matter of entitlement to a TDIU due to the lumbar spine disability (pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009)); denied a disability rating greater than 30 percent for the low back disability from August 25, 2003, the date of receipt of the increased rating claim, to November 9, 2003, but granted a 40 percent rating for the disability, effective November 10, 2003; and remanded the TDIU claim for additional development. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court granted a Joint Motion filed by representatives for both parties, vacating that portion of the March 2013 decision in which the Board denied higher ratings for lumbar spine disability, and remanding the matter of higher ratings to the Board for further proceedings consistent with the Joint Motion. Thereafter, in January 2014, the Board remanded the matter of increased ratings for the lumbar spine disability for additional evidentiary development. Subsequently, the RO awarded a TDIU, effective August 29, 2006. The Veteran filed a NOD later that month and a SOC was issued in July 2016. In August 2016, the Veteran filed a substantive appeal as to the issue of the effective date for the TDIU award. In a December 2016 rating decision, the RO awarded a 40 percent rating for the lumbar spine disability from August 25, 2003. In September 2017, the Board determined that the matter of the Veteran’s entitlement to a TDIU prior to August 29, 2106529remanded the higher ratings and TDIU claim for further development and it is now returned to the Board for further appellate consideration. Unfortunately, the Board finds that further agency of original jurisdiction (AOJ) action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2017, the Board remanded the claims and requested that the AOJ address the denial of a higher rating for his low back disability, to include on an extra-schedular basis under 38 C.F.R. § 3.321(b), due to his weight gain, high blood pressure, arrhythmia, bilateral hip condition, allergies, and side effects caused by medications to treat his low back disability. The Board also directed the AOJ to consider the Veteran’s entitlement to a TDIU on an extra-schedular basis prior to August 29, 2006, to include pursuant to 38 C.F.R. § 4.16(b). Here, in declining to refer the higher rating and TDIU claims to VA’s Compensation Director, the AOJ failed to consider the effects of prescribed medications and other factors identified by the Veteran, as requested by the Board. Moreover, upon closer review of the record, it appears that the applicable rating criteria may not be fully adequate to evaluate all signs and symptoms of the Veteran’s back disability, and there is evidence that the Veteran’s service-connected lumbar spine back may resulted in marked interference with employment. Hence, a remand is warranted for referral of the Veteran’s claims to the Compensation Director for extra-schedular consideration ratings pursuant to 38 C.F.R. §§ 3.321(b)(1) and 4.16(b) While these matters are on remand, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Spokane Washington VA Medical Center (VAMC), and that records from these facilities dated through September 2018 are associated with the file; however, more recent records may exist. Hence, the AOJ should obtain all records of pertinent treatment since September 2018. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may decide a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. The matters are hereby REMANDED for the following action: 1. Obtain from the Spokane Washington VAMC (and associated facility(ies) any outstanding records of VA evaluation and/or treatment of the Veteran since September 2018. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that he provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the file, refer to VA’s Director of Compensation Service (Director) the claims of entitlement to a higher rating for lumbar spine disability, and for a TDIU prior to August 29, 2006, for extra-schedular consideration. The contents of the entire electronic claims, to include a complete copy of this REMAND, must be made available to the Director. The Director (or his designee) should issue a memorandum addressing whether the Veteran is entitled to a rating higher than 40 percent for back disability on an extra-schedular basis or an extra-schedular TDIU, prior to August 29, 2006. The memorandum should clearly provide a summary of the facts and law relied upon in making the decision, and should include an explanation of the reasons and bases for the decision. The memorandum should specifically consider the Veteran’s contentions pertaining to the impact of the medications taken for his service-connected back disability, including weight gain, an upset stomach, nausea, increased blood pressure as reported in the June 2010 and September 2011 VA examination and its impact on his daily life and employment. A copy of the memorandum must be included in the electronic claims file. 6.. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. (Continued on the next page) 7. After completing the above requested action, and any additional notification and/or development deemed readjudicate the remaining claims in light considering all pertinent evidence (to particularly include all that added to the electronic claims file(s) since the last adjudication and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell