Citation Nr: 18154814 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 09-37 194A DATE: December 3, 2018 REMANDED Entitlement to service connection for a gastrointestinal disability, to include colitis is remanded. Entitlement to an initial rating in excess of 20 percent for intervertebral disc herniation of the thoracolumbar spine and sacroiliitis (low back disability) is remanded. Entitlement to higher initial ratings for paranoid schizophrenia, currently rated as 30 percent disabling effective September 19, 2007; rated as 100 percent disabling effective June 7, 2012; and rated as 70 percent disabling effective August 25, 2014 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND Entitlement to service connection for a gastrointestinal disability, to include colitis The Board denied service connection for a gastrointestinal disability, to include colitis, in an August 2015 decision. In May 2017, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s decision. The Court found that the February 2005 VA examination report and the April 2005 addendum opinion were inadequate. Specifically, it found that the examiners relied on the absence of corroborating documentation of colitis symptoms or an in-service diagnosis, without any supporting basis or rationale, to conclude that the Veteran’s colitis was unrelated to service. It found that the examiners failed to consider the 1986 treatment records, and the Veteran’s lay statements regarding the frequency and onset of his colitis symptoms. The Court found that a remand is necessary to obtain an adequate medical opinion with supporting rationale. Entitlement to an initial rating in excess of 20 percent for intervertebral disc herniation of the thoracolumbar spine and sacroiliitis (low back disability) In August 2015 , the Board remanded this issue so that the RO could issue a statement of the case, per Manlincon v. West, 12 Vet. App. 238 (1999). A statement of the case was issued in April 2016; and the Veteran submitted a substantive appeal in June 2016. In it, he requested a Board hearing. In an October 2018 correspondence, the Veteran’s representative stated that the Veteran’s living situation makes travel impossible. The representative submitted the correspondence in lieu of a hearing. The Board considers the hearing request to be withdrawn. The rating assigned by the RO is based primarily on a June 2012 report from Dr. F.G. The Board notes that the report is more than six years old. The Board also notes that the Veteran was not afforded a VA examination. The Board finds that a VA examination is necessary to determine the current severity of the Veteran’s symptoms. In so finding, the Board acknowledges the Veteran’s difficulties with traveling but nevertheless finds that not attempting to arrange an examination would be detrimental to the Veteran in that the file otherwise lacks sufficient contemporaneous evidence of disability. Entitlement to higher initial ratings for paranoid schizophrenia, currently rated as 30 percent disabling effective September 19, 2007; rated as 100 percent disabling effective June 7, 2012; and rated as 70 percent disabling effective August 25, 2014 In an April 2016 rating decision, the RO granted service connection for paranoid schizophrenia. In June 2016, the Veteran filed a timely notice of disagreement with regard to the assigned ratings. The RO has yet to issue a statement of the case in response to the Veteran’s disagreement. Where a claimant files a notice of disagreement and the RO has not issued a statement of the case, the issue must be remanded to the RO for a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, the issue must be remanded. Entitlement to a TDIU The Veteran, in a June 2016 correspondence, claimed entitlement to a TDIU because he could not work due to his service-connected disabilities, including those disabilities on appeal. The Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate ‘claim’ for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. As such, the Board has added the issue of entitlement to a TDIU rating. Finally, the Board notes that the Veteran submitted a VA Form 21-4142 in June 2016. He gave the VA authorization to obtain records from Dr. Y.C., Dr. K.D., and the Hospital Regionale d’Edmunston. The RO should retrieve these records. The matters are REMANDED for the following action: 1. The RO must attempt to retrieve records from Dr. Y.C., Dr. K.D., and the Hospital Regionale d’Edmunston. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any gastrointestinal disability, to include colitis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a 1985 episode of diarrhea; a September 1986 episode of stomach pains, nausea, and diarrhea; and gastroenteritis in 1987. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. 3. Schedule the Veteran for an examination of the current severity of his low back disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s low back disability alone and discuss the effect of the Veteran’s low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The AOJ should advise the examiner that all joints examination should comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017) on assessing any functional loss due to flare-ups and use over time; Correia v. McDonald, 28 Vet. App. 158 (2016) on how range of motion is tested; and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has held that a lack of opportunity to observe a flare-up is not a sufficient basis for declining to estimate its functional effects. The examiner should provide an estimate and is free to indicate the level of confidence in such estimate on a scale of 1 to 5, with 5 very the most confident and 1 being the least confident. 3. The RO should take appropriate action, including issuance of a statement of the case, on the issues of entitlement to increased ratings for paranoid schizophrenia and entitlement to a TDIU. The Veteran and his representative should be clearly advised of the need to file a timely substantive appeal if the Veteran wishes to complete an appeal from the determination. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel