Citation Nr: 1825841 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-33 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for recurrent strain of the thoracolumbar spine with lumbarization of the lumbosacral spine. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Peden, Associate Counsel INTRODUCTION The Veteran had active service from April 2008 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated June 2011 of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased rating claim, pursuant to Rice. In view of the foregoing, the TDIU issue will be considered by the Board in the remand below. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to a higher rating for the service-connected recurrent strain of his thoracolumbar spine with lumbarization of his lumbosacral spine. Although several VA examinations have been performed in this case, the provided examinations do not include all necessary findings for an adequate determination. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that an adequate orthopedic examination of the back should record the range of motion for pain on active motion and passive motion and in weight-bearing and non weight-bearing and should address either the findings necessary to evaluate functional loss during flare-ups or clearly explain why the required testing cannot be completed or is not necessary. Correia v. McDonald, 28 Vet. App. 158 (2016). Such information is missing from the most recent (August 2014) VA examination report. Additionally, the most recent examination report noted that IDVS was present and did not result in any incapacitating episodes, yet confusingly also noted the Veteran missed one to two days of work in the past twelve months because of IDVS symptoms. Finally, the examiner opined that the Veteran's lumbar spine disability impacted his ability to work but did not give a description of the specific impact or rationale to support his opinion. Thus, on remand, the examiner should give an opinion on the Veteran's disability on his employment, and the AOJ should provide him with a notification letter concerning his claim of entitlement to TDIU that complies with the notification requirements of 38 U.S.C. § 5103(a) (2012), 38 C.F.R. § 3.159(b) (2017) and VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to the Veteran, for completion and return to VA. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, as the Veteran's claim for a higher rating is dependent upon range of motion testing, the Board finds the Veteran must be afforded an additional VA examination. Prior to the examination, up-to-date VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to his claim and provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with the record. 2. Upon receipt of all additional records, schedule the Veteran for a VA examination to determine the current nature and extent of his service-connected lumbar spine disability. The record, including a complete copy of this remand, must be made available to the examiner for review, and the examiner must indicate in the examination report that the record was reviewed in conjunction with the examination, including for the history of this claimed disability. The examiner must address the following: a. the range of motion of the Veteran's lumbar spine, to include a discussion of pain and limitation of motion on active motion and passive motion and in weight-bearing and non weight-bearing. The examiner must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary; b. the severity of the Veteran's service-connected lumbar spine disability, including whether he has ankylosis of his lumbar spine and, if so, whether it is favorable or unfavorable, as well as the number of weeks, if any, during the past 12 months that he had "incapacitating episodes" (defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician); and c. the functional impairment of the service-connected lumbar spine disability, including the effect of this disorder on the Veteran's employability. The examiner should summarize the pertinent evidence of record and reconcile the opinions provided with the other opinions of record. An explanation must be provided if the examiner finds that X-ray studies are not required for adequate opinions. Rationale for the requested opinions shall be provided. If the examiner cannot provide these opinions without resorting to mere speculation, he or she must provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinions. 3. Then, readjudicate the issues on appeal, as are listed on the title page of this Remand. If either claim remains denied or is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond before returning the file to the Board for further appellate consideration. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, for example, may impact the determination made-as may his failure to report for a scheduled VA medical examination. 38 C.F.R. § 3.655 (2017). He is advised that he has the right to submit additional evidence and argument, whether himself or through his (CONTINUED ON NEXT PAGE) representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C. § 7252 (2012). 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) (2017).