Citation Nr: 19106965 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 11-17 482 DATE: January 29, 2019 REMANDED 1. Entitlement to a rating in excess of 10 percent for lumbosacral spine disc disease with spinal stenosis and degenerative joint disease (DJD) is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a veteran who served on active duty from July 1986 to February 1989. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 Department of Veterans Affairs (VA) rating decision, which granted service connection for the low back disability, and assigned a 10 percent rating effective in February 2009. In May 2018, a Travel Board hearing was held before the undersigned. During the pendency of the appeal, an October 2014 Decision Review Officer decision granted service connection for right and left lower extremity radiculopathy associated with the low back disability, assigning a 10 percent rating for each extremity, effective in January 2013 (date entitlement arose). The ratings were continued in a December 2017 RO rating decision. The Veteran has not expressly indicated any disagreement with the lower extremity ratings (or effective date of service connection), including at the Travel Board hearing. Therefore, the separate ratings for radiculopathy will not be addressed. The TDIU issue has been added to the appeal because a TDIU claim is part of an increased rating claim when such claim is asserted by the Veteran or raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). At the May 2018 hearing, it was asserted that the Veteran was prevented from working due to disabilities other than her service-connected low back disability. However, since then (in December 2018) she submitted a notice of disagreement disputing RO’s December 2017 rating decision that (in part) denied her entitlement to a TDIU rating; she specifically alleged that she was unable to find work due to functional limitations imposed by her service-connected low back disability, posttraumatic stress disorder, and ulcerative colitis. 1. Entitlement to a rating in excess of 10 percent for lumbosacral disc disease with spinal stenosis and DJD is remanded. At the Travel Board hearing in May 2018, the Veteran testified that she only received medical treatment from private providers, and not VA, for her low back disability. She stated that since she last submitted private medical records in the summer of 2017, she had only seen her doctor for refills of pain medication every two months, but that these re-checks included examination. Therefore, VA should seek to obtain updated treatment records, which may be pertinent. In November 2017 the Veteran underwent examination of her low back disability. In the Disability Benefits Questionnaire (DBQ) report of that evaluation, the examiner indicated that the examination was being conducted in conjunction with a C&P examination request, but that no records had been reviewed including the Veteran’s claims file. It is important that in the examination and in the evaluation of the disability, the Veteran’s low back disability should be viewed in relation to its history. 38 C.F.R. § 4.1. Furthermore, the DBQ, which included range of motion findings that showed further limitation of motion of the Veteran’s low back since her previous VA examination in November 2014, was not considered in the first instance by the RO. (The RO last considered the Veteran’s claim when it issued a supplemental statement of the case in October 2015.) Thus, prior to adjudicating the claim, the RO should determine what further development may be necessary to ensure that the record is adequate to evaluate the low back disability, to include consideration of whether another examination (or addendum to the November 2017 examination report to provide the examiner an opportunity to review the pertinent records) should be obtained. 2. Entitlement to a TDIU is remanded. As was noted above, a TDIU claim is part of an increased rating claim when such claim is raised by the Veteran, as is the case at present. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the RO should ensure that the claim has been developed properly, to include consideration of whether a further VA examination (or medical opinion) is necessary to decide the claim. Notably, the Veteran underwent examination of her service-connected ulcerative colitis in November 2017, and similar to the spine examination then conducted, the examiner noted that no records were reviewed in conjunction with the examination. The matter is REMANDED for the following: 1. Ask the Veteran to submit updated private medical records (since February 2017) of evaluations and treatment that she has received for her low back disability (and her other service-connected disabilities). Alternatively, she can submit a medical release for the VA to obtain the records on her behalf. 2. Determine what further development is necessary to ensure that the record is adequate to evaluate the service-connected low back disability, and to decide whether the Veteran’s service-connected disabilities prevent her from obtaining and maintaining gainful employment. A VA examination should be arranged, or a medical opinion should be obtained, whichever is deemed more appropriate, if such is necessary to (a) assess the current severity of the low back disability, and/or (b) assess the nature and extent of functional impairment due to her service-connected disabilities and their impact on physical and less strenuous/perhaps sedentary types of employment. In that regard, it is noted that the spine and gastrointestinal DBQs of November 2017 reflect that the examiners did not review any records in the claims file in conjunction with those examinations, and such deficiency should be addressed. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel