Citation Nr: 18157642 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-60 892 DATE: December 13, 2018 REMANDED Entitlement to an increased disability rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to an increased disability rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to an increased disability rating in excess of 10 percent for a left knee arthritis 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 had active service from December 1986 to December 1995. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO continued 10 percent disability ratings assigned to the service-connected low back, left ankle and left knee disabilities. The Board finds that the issue of entitlement to TDIU has been raised by the record; see Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, a December 2011 letter from the Office of Personnel Management (OPM) to the Veteran reflects that he was found to have been medically retired from his position as a “City Carrier” secondary to osteoarthritis and low back pain. (See OPM’s December 2011 letter to the Veteran). The Board finds that prior to further appellate review of the claims, additional substantive and procedural development is required. First, a remand is required to obtain records from the OPM and VA Vocational Rehabilitation records. Here, a December 2011 letter from the OPM to the Veteran reflects that he was found to have been medically retired from his position as a “City Carrier” secondary to osteoarthritis and low back pain. (See OPM’s December 2011 letter to the Veteran). In addition, the Veteran has maintained that he was enrolled in VA’s Vocational Rehabilitation program and that he had missed class because of his back and knee issues. (See VA Form 21-0958, Notice of Disagreement, received by VA in October 2014). As these are federal records, adjudicating disability benefits, these records must be requested and should be obtained prior to further adjudication of the claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). A remand is also required to obtain a current VA examination of the Veteran’s low back disability. VA last examined the Veteran’s spine to determine its current (then) severity in September 2014. (See September 2014 VA Back Disability Benefits Questionnaire (DBQ)). A review of the September 2014 report pertinently reflects that the examiner concluded that the Veteran did not experience any incapacitating episodes of his lumbar spine disability. However, on VA Form 21-0958, Notice of Disagreement, received by VA in October 2014, the Veteran indicated that the examiner had failed to accurately report his low back symptoms. Specifically, he maintained that he had experienced at least (3) incapacitating episodes of his lumbar spine two times a month. Id. Third, as noted above, the record reflects that he cannot work, notably as his previous position as a “City Carrier” on account of his knees and back. While he does not meet the schedular rating criteria for a TDIU, his claim should be sent to the Director of Compensation and Pension for consideration of TDIU on an extraschedular basis. Finally, the Board observes that the RO last adjudicated the issues on appeal in a November 2016 Statement of the Case (SOC). The appeal was certified to the Board in December 2016. However, after issuance of the November 2016 SOC, additional VA records, including a December 2016 VA Ankle DBQ were added to the record prior to the appeal’s certification to the Board in mid-December 2016. A supplemental statement of the case (SSOC) was not provided prior to certification to the Board. Where evidence is submitted to the RO prior to certification of the appeal to the Board, such as in this case, the RO must issue an SSOC; the governing regulations do not include a waiver provision. 38 C.F.R. §§ 19.31, 19.37. The matters are REMANDED for the following action: 1. Request documents from OPM concerning the Veteran’s retirement as a “City Carrier” due to his back pain and osteoarthritis. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 2. Obtain VA vocational rehabilitation records to the extent the Veteran ever applied. If VA vocational rehabilitation has no record of the Veteran ever applying, this should be so noted in the record. 3. Provide the Veteran with an examination to determine the severity of his service-connected lumbar spine disability. 4. Adjudicate the claim for TDIU. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel