Citation Nr: 1827751 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 13-21 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for residuals of lumbar laminectomy including degenerative arthritis and surgical scar (back disability), rated as 20 percent disabling from September 9, 2009. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from June 1960 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case is under the jurisdiction of the RO in Atlanta, Georgia. When this case was before the Board in May 2017, it was remanded for further development. It is now before the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to an increased rating for diabetes mellitus type 2 with erectile dysfunction has been raised by the record in a July 2016 statement by the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Although the Board referred this issues in the May 2017 Board decision, the Board will refer it again to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND This case was previously remanded to the AOJ in May 2017 for further development of the TDIU claim and for an examination of the Veteran's back disability. An examination was scheduled for the Veteran; however, a July 2017 record notes that the Veteran cancelled his examination because he did not wish to pursue his claim. The AOJ sent a follow-up letter to the Veteran asking him if he wished to withdraw his appeal. He did not respond to this letter. In April 2018, the Veteran's representative reported that the notation regarding cancellation of the examination and not wishing to pursue his claim was written by a contractor and not by someone at the AOJ. The representative found it implausible that the Veteran would know how to contact this contractor and would do so on a Friday evening and not during the day. Due to the uncertainty surrounding this cancellation and because the Veteran did not respond to the letter asking if he wanted to withdraw his claim, the Board find that a remand is in order so that the Veteran can have another chance to attend a VA examination. Also, since the time of the last remand, new examination requirement are needed regarding flare-ups. These directives are included below. See Sharp v. Shulkin, No. 16-1385, decided September 6, 2017. The issue of entitlement to a TDIU is intertwined with the Veteran's back disability because a grant of a TDIU is based on all service-connected disabilities and his back disability is one of his service-connected disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, both issues must be remanded. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any VA treatment records since 2010. All records/responses received must be associated with the electronic file. 2. Schedule an examination for the purpose of ascertaining the current nature and severity of his service-connected back disability, to include any functional effects. The Veteran's electronic file should be made available to and be reviewed by the examiner, and he or she must indicated whether such review was accomplished. The examiner should determine the range of motion of the Veteran's back, in degrees. Range of motion testing must include both passive and active motion, as well as weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. (if any of these tests are not medically appropriate for any reason, the examiner should state this and provide and explanation) The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., pain, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation as to why. If the Veteran is not suffering from a flare-up of his back at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of the Veteran's cervical and lumbar spine in terms of range of motion on the basis of that information. A rationale for the opinions in the report must be provided. 3. Then, readjudicate the appeal. If the benefits sought are not granted in full, furnish the Veteran and his representative a supplemental statement of the case and, after allowing the appropriate period of time for response, return the case to the Board. 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). The 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 (2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).