Citation Nr: 1807252 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-26 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial increased rating in excess of 10 percent for service-connected degenerative joint disease of the thoracic spine. 2. Entitlement to an initial increased rating in excess of 10 percent for service-connected left knee strain. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1984 to June 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The record includes a transcript of the proceeding. A claim for a TDIU is part and parcel of an increased rating claim where, as here, a claimant asserts that his service-connected disabilities prevent him from working. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). In his July 2014 VA Form 9, the Veteran maintained that he was not able to work, at least in part, due to the instant service-connected disabilities. The Board has therefore characterized the issues on appeal to include a claim for a TDIU. See id. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Before a decision can be reached on his claims, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Thoracic Spine Disability The Veteran contends that he is entitled to an increased rating in excess of 10 percent for his thoracic spine disability. As reflected in a September 2014 VA Form 646, the Veteran contends that his last VA examination, which is dated in August 2012, does not accurately reflect his current level of severity. In this regard, the Board notes that at his April 2017 Board hearing, the Veteran reported periods of muscle spasms and symptoms indicating possible radiculopathy. In light of this background, a new VA examination is warranted to determine the current nature and severity of his thoracic spine disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). At his Board hearing, the Veteran also indicated that he had applied for disability benefits from the Social Security Administration (SSA). In the case of federal records, VA's duty to assist requires it to make as many requests as necessary to secure relevant federal records. See 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(2) (stating that VA will end its efforts to obtain federal records only if it concludes that the records sought do not exist or that further efforts to obtain such records would be futile). As a claim for Social Security disability benefits might be pertinent to the instant claims, a remand is necessary to obtain and associate with the claims file any SSA decisions awarding or denying benefits to the Veteran, in addition to the records upon which SSA based any decision. Left Knee Disability The Veteran contends that he is entitled to an increased rating in excess of 10 percent for his left knee disability. In a September 2014 VA Form 646, the Veteran's representative maintained the last VA examination, which is dated in August 2012, does not accurately reflect the Veteran's current level of severity. The Board notes that during his April 2017 Board hearing, the Veteran reported having to keep his left leg straight due to difficulty bending his knee, and needing to wear a knee brace. Accordingly, a new VA examination is warranted to determine the current nature and severity of the Veteran's left knee disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Snuffer, 10 Vet. at 402-03. TDIU As noted in the Introduction, the record raises the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. at 454-55. As the Veteran has not been sent a notification letter in compliance with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), the issue of entitlement to a TDIU must be remanded for appropriate notice and development. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Ensure that all notification and development action required by 38 U.S.C. §§ 5102, 5103 and 5103A are complied with and satisfied with respect to the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16. 3. Perform an SSA inquiry to determine whether there are any records that exist but have not yet been associated with the claims file, to include any administrative decision(s) on any application for SSA disability benefits and all underlying medical records in SSA's possession. If the search for such records yields negative results, the claims file must be properly documented as to the unavailability of these records. Associate all SSA inquiries, records requests, and responses received with the claims file. 4. After completing the development requested in numbers (1) and (3) above, schedule the Veteran for a VA back examination with an appropriate medical examiner to address the current nature and severity of his service-connected thoracic spine disability. The claims folder, including a copy of this remand, must be made available to, and reviewed by, the examiner. The examiner should respond to the following inquiries: a) All tests and studies deemed necessary by the examiner should be performed, and the examination report should comply with all appropriate protocols for rating musculoskeletal disabilities of the spine, in addition to any associated neurologic abnormalities. b) The examiner must consider functional loss due to flare-ups, repetitive use, painful motion, weakness, excessive fatigability, lack of endurance, and/or incoordination. To the extent possible, any such determination should be expressed in terms of the estimated loss of range of motion. c) The examiner should state whether the Veteran's thoracic spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician, and if so, the frequency and duration of such episodes. d) The examiner should clarify whether the Veteran has signs or symptoms due to radiculopathy, and if so, the examiner should indicate the nerve roots involved, as well as the severity of any radiculopathy and the side(s) affected. The examiner should specifically consider the Veteran's reports of possible radicular symptoms, as reflected in his April 2017 Board hearing testimony. e) The examiner should address all current functional impairment from the Veteran's thoracic spine disability, to include any impact on occupational functioning. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion without resorting to speculation, he or she should explain the reasons for such inability and indicate whether any further evidence or information would be useful in rendering the opinion being sought. 5. After completing the development requested in numbers (1) and (3) above, schedule the Veteran for a VA examination with an appropriate medical examiner to address the current severity of his service-connected left knee disability. The claims folder, including a copy of this remand, must be made available to, and reviewed by, the examiner. The examiner should respond to the following inquiries: a) All tests and studies deemed necessary by the examiner should be performed, and the examination report should comply with all appropriate protocols for rating musculoskeletal disabilities of the knee and lower leg. b) Range of motion testing of both knees should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe any associated functional limitations. c) The examiner should specifically offer an opinion as to the impact of any functional loss due to pain during flare-ups, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, or functional loss manifestations related to flare-ups. d) The examiner should offer an opinion as to whether there is a history of lateral instability, and if so, should indicate the degree of lateral instability (slight, moderate, or severe). e) The examiner should address all current functional impairment from the Veteran's service-connected left knee disability, to include any impact on occupational functioning. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion without resorting to speculation, he or she should explain the reasons for such inability and indicate whether any further evidence or information would be useful in rendering the opinion being sought. 6. After completing the development requested above, in addition to any other development deemed necessary by the AOJ, re-adjudicate the Veteran's claims. If any of the benefits sought are not granted in full, furnish the Veteran and his representative an SSOC, and return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).