Citation Nr: 1807182	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-20 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an initial increased rating for lumbar strain with degenerative arthritis (low back disability) in excess of 10 percent prior to July 14, 2014 and in excess of 20 percent thereafter.  

2.  Entitlement to service connection for a bilateral hip disorder.

3.  Entitlement to service connection for a neck disability.   

4.  Entitlement to a total disability rating based on individual unemployability (TDIU). 


REPRESENTATION

Veteran represented by:  Agent Veronica Lira



ATTORNEY FOR THE BOARD

N. Robinson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1981 to January 1984 and from October 1985 to October 2005.  These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
 
In his January 2014 VA Form 9 (substantive appeal), the Veteran requested a Board videoconference hearing; however, he did not appear for his scheduled May 10, 2017 hearing.  Accordingly, the Board considers the hearing request to be withdrawn and will proceed to review the case based on the evidence of record.  See C.F.R. § 20.704(d), (e) (2017).
 
In an August 2014 rating decision, the RO increased the Veteran's evaluation for his low back disability from 10 percent to 20 percent, effective July 14, 2014.  Because this increase does not represent a total grant of the benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran did not file a substantive appeal for the issues of entitlement to an increased rating for hearing loss, service connection for an eye condition, service connection for a dizziness, service connection for fatigue, service connection for hypertension, service connection for headaches, or service connection for memory loss.  The issues of service connection for rhinitis and posttraumatic stress disorder (PTSD), also originally associated with this appeal stream, were granted by the RO in a December 2013 rating decision.  Accordingly, these issues are not in appellate status and will not be addressed here.  

In addition, the Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, and is taking jurisdiction of a claim for a TDIU rating as part and parcel of the claim seeking an increased rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009). 

The issues of entitlement to an increased rating for a low back disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

In a January 2016 rating decision, service connection for a neck disability was granted, resulting in a full grant of the benefit sought on appeal.


CONCLUSION OF LAW

The claim of entitlement to service connection for a neck disability is moot and is dismissed.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.202 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has jurisdiction where there is a question of fact or law in any matter which, under 38 U.S.C. § 511(a), is subject to a decision by the Secretary.  38 U.S.C. § 7104.  The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  

In July 2010, the Veteran filed a claim for a neck condition.  In an October 2011 rating decision, the RO denied the claim.  The Veteran filed a timely notice of disagreement (NOD) and substantive appeal.  In August 2014, the RO issued a Supplemental Statement of the Case (SSOC) continuing the denial of service connection for a neck condition.  In August 2015, the Veteran filed a "supplemental claim" for a neck condition.  In a January 2016 rating decision, the RO granted service connection for a neck condition, now termed a cervical strain disability.  After reviewing these procedural documents and the relevant medical evidence including the December 2015 VA examination, the Board finds that there is no separate service connection claim for a neck condition aside from that granted by the RO.  

Therefore, because there is no allegation or factual or legal error remaining for appellate consideration in the matter, the Board lacks the jurisdiction to consider it, and the appeal must be dismissed.

ORDER

The appeal pertaining to the issue of entitlement to service connection for a neck condition is dismissed.


REMAND

Subsequent to the August 2014 SSOC, additional evidence has been received, including a December 2015 examination report and additional VA treatment records.  Without a waiver of initial RO consideration, a remand is necessary for the issuance of an SSOC that considers all relevant evidence of record associated with the claims file.  38 C.F.R. § 19.31, 19.37 (2017).

Back 

The Veteran is requesting a higher initial rating for his low back disability, currently rated at 10 percent disabling prior to July 14, 2014 and 20 percent disabling thereafter under diagnostic code 5237.  His December 2015 VA examination does not comply with the U.S. Court of Appeals for Veterans Claims' decision in Correia v. McDonald because the examiner did not report results of both active and passive range of motion testing.  Correia v. McDonald, 28 Vet. App. 158 (2016).  This information is necessary because the Veteran's disability rating depends on his range of motion.  This specific testing is also essential for the examination report to be considered legally adequate.  Accordingly, a remand is necessary to arrange a new examination that provides this information.  

Hips

The Veteran is claiming service connection for a bilateral hip disorder.  A review of the medical evidence shows he has repeatedly reported right hip pain, which clinicians have described as radiculopathy, i.e., they have related it a back disorder.  The record also raises the theory of entitlement to service connection for a Gulf War illness (as undiagnosed hip joint and muscle pain).  On remand, the examiner should identify any current hip disabilities (to include radiculopathy) and state whether such are related to the Veteran's service or caused or aggravated by his service-connected back disability.  The RO should then re-adjudicate this issue on a direct and secondary basis, and, if warranted, as a Gulf War illness claim.   

TDIU  

The TDIU claim is remanded as intertwined with the increased rating claim also being remanded.  In other words, additional information obtained during the requested VA back examination (or other information regarding employability provided by the Veteran or obtained by the RO on remand) could support this claim.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any updated VA or adequately identified treatment records related to the claims on appeal.

2.  Then schedule the Veteran for a back and hip VA examination.  The claims folder and all pertinent medical records should be made available to the examiner for review.  All necessary diagnostic testing should be performed.  




For the back: 

The examiner must describe all impairments of the Veteran's back disability; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms.

The examiner must test active and passive range of motion, and provide weight-bearing and non-weight-bearing information, or detail why such testing is not necessary.  Range of motion should be expressed in terms of degrees for active and passive motion.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  

It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion caused by flare-ups of the Veteran's back disability (if the Veteran is not experiencing a flare up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms she experiences during flare ups and provide an opinion based on that information).  The examiner's comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc.  Any determination concerning this functional loss or loss during flare ups should be expressed in degrees of additional range of motion loss.  


The examiner must also: 

a)  Describe the functional impairment caused by the Veteran back disability taking into account the Veteran's statements and other evidence of record regarding his education and work experience. 

b) Comment on the Veteran's ability to function in an occupational environment in light of his back disability.

For the hips/radiculopathy:

For the Veteran's hips, identify any disabilities, to include radiculopathy.  Any needed diagnostic testing should be performed.  Based on the review of the claims file including any newly obtained evidence, interview, examination, and diagnostic testing, the clinician should provide an opinion responding to the following: 

a) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was incurred in or is otherwise related to the Veteran's service?

b) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was CAUSED by the Veteran's service-connected back disability?

c) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was AGGRAVATED by the Veteran's service-connected back disability?  (Aggravation means the disability increased in severity beyond its natural progression.)

d) If there is no diagnosed disability, summarize the Veteran's noted signs and reported symptoms and state whether such are not characteristic of a known clinical diagnosis. 

A detailed explanation (rationale) is requested for all opinions provided.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also request in a clarification being requested).

3.  The AOJ should then readjudicate the claims on appeal.  If any remain denied, the AOJ should issue an appropriate supplemental statement of the case and give the Veteran and his agent the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the remanded matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  As a remand, this matter must be handled expeditiously.  38 U.S.C. §§ 5109B, 7112 (2012).




_________________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims.  38 U.S.C.A. § 7252 (2012).  This remand is a preliminary order and not an appealable decision on the merits of the claim(s).  38 C.F.R. § 20.1100(b) (2017). 

Department of Veterans Affairs