Citation Nr: 18151325 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-44 161 DATE: November 16, 2018 REMANDED Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2001 to November 2001, November 2002 to October 2003, and October 2005 to June 2007. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The claims of entitlement to increased rating for a lumbar spine disability and PTSD, and entitlement to TDIU are remanded. In August 2018, the Board informed the Appellant that additional evidence had been received that was not previously considered in a decision by the Agency of Original Jurisdiction. The Appellant was informed that he had a right to have the Agency of Original Jurisdiction review the evidence before the Board does, but if he wanted, he could waive that right by submitting a waiver in writing. The Board informed the Appellant that if he did not respond within 45 days of the date of the notice letter, the Board would remand the appeal to the Agency of Original Jurisdiction for review. The Appellant did not respond to the June 2018 letter. Therefore, in accordance with the June 2018 letter, the case must be remanded for initial review of the additional evidence by the Agency of Original Jurisdiction. A supplemental statement of the case is needed. 38 C.F.R. § 19.31. With regard to the claim for service connection for his PTSD, back disability and TDIU, a remand is required to properly develop evidence. Following the issuance of a December 2015 statement of the case, new evidence pertinent to the Veteran’s PTSD and back disability was added to the record that was not considered by the AOJ in any subsequent supplemental statement of the case. That new evidence consists of VA medical records including hospitalization records of a January 2018 suicide attempt by overdose. The Veteran most recently attended VA examinations of PTSD and a lumbar spine disability in October 2014. The record shows he has received ongoing treatment for both disabilities. In August 2015, the Veteran reported that he could not work due to these disabilities. The representative has requested that a more contemporary examination be provided. Because of the Veteran’s ongoing treatment, the Board finds that more current examinations are necessary. The claim for TDIU is part of the claim for increased rating for PTSD and back disability. Therefore, that claim is also remanded. The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record, and associate them with the record. 2. Schedule the Veteran for a VA examination to assess the current severity of PTSD. The examiner is asked to review the claims file and medical records and to note that review in the report. The examiner is asked to conduct a complete examination, and to obtain a detailed mental status. The examiner is also asked to comment on the functional impact the psychiatric disability has on work. The examiner should describe the levels of social and occupational impairment and describe the symptomatology that results in those levels of impairment. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 3. Schedule the Veteran for a VA examination to assess the nature and severity of a lumbar spine disability. The examiner is asked to review the claims file and medical records and to note that review in the report. All indicated tests and studies should be accomplished, and all clinical findings must be reported in detail. The physician must conduct range of motion testing for active and passive motion and weight-bearing and nonweight-bearing of the thoracolumbar spine, expressed in degrees. The examiner should state whether there is any additional loss of function due to painful motion, excess motion, fatigability, incoordination, weakened motion, or on flare up. If the Veteran has incapacitating episodes associated with the lumbar spine disability, the examiner should specify their frequency and duration. Incapacitating episodes are periods of acute signs and symptoms of intervertebral disc syndrome requiring treatment by a physician and bed rest prescribed by a physician. The examiner should opine whether there is muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should state all examination findings, with the rationale for the comments and opinions expressed. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 4. Readjudicate the pending increased rating and TDIU claims. Specifically, consider all evidence added to the appeal subsequent to the issuance of the most recent statement of the case and supplemental statement of the case. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel