Citation Nr: 20032887 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 17-50 427 DATE: May 12, 2020 REMANDED The claim of entitlement to a rating greater than 40 percent for service-connected degenerative disc disease of the lumbar spine, status post laminectomy (lumbar spine disability) is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1985 to July 2005. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2016 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) assigned a 40 percent rating for service-connected lumbar spine disability, effective August 1, 2016 (following the award of a temporary total disability rating based on surgical convalescence, from May 12, 2016 through July 31, 2016). The Veteran filed a timely notice of disagreement (NOD) in December 2016. A statement of the case (SOC) was issued in June 2017 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in August 2017. In January 2020, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. During the hearing, the undersigned agreed to hold the record held open for 60 days for the submission of additional evidence. In January 2020, private medical evidence, along with a waiver of agency of original jurisdiction (AOJ) consideration of evidence, was received. Also, this appeal has been advanced on the Board’s docket, pursuant to 38 U.S.C. § § 7107(a)(2) and 38 C.F.R. § 20.900(c). Regarding characterization of the appeal, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447, 543-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is considered a component of a higher rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, in August 2017, during the pendency of the current claim for increase, the Veteran filed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in which he specifically identified his service-connected lumbar spine disability as the source of his inability to work. Thus, the appeal has been expanded to include the matter of entitlement to a TDIU due to service-connected lumbar spine disability. The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claims on appeal, prior to appellate consideration, is warranted. The Veteran contends that his service-connected lumbar spine disability is worse than is reflected in his 40 percent disability rating. During his Board hearing, the Veteran testified that he had two procedures related to his lumbar spine in 2016, but that the pain has not abated. See January 2020 Board Hearing Transcript, page 6. The Veteran testified that he has had trouble walking because of his constant back pain and back spasms, and that he cannot stand or sit for a long period of time, all of which interfered with his work in automotive repair, at which he has not worked since September 2015. See Transcript, pp. 11-12. In connection with his increased rating claim, the Veteran underwent a VA spine examination in August 2016. During the examination, the Veteran reported flare-ups and functional loss due to his lumbar spine disability. However, as the examination was not conducted during a flare-up, the examiner did not provide an estimation of the extent of the Veteran’s flare-ups or his functional loss during the flare-ups. Under such circumstances, however, the examiner should have considered the Veteran’s documented medical history and assertions in providing an estimate of the extent of functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (holding that where reports of flare-ups of joint disability are present, the examination reports must describe the frequency, duration, characteristics, severity, and functional loss due to flare-ups). Accordingly, a remand of the higher rating claim for a new VA spine examination to obtain the testing results and clinical findings need to properly evaluate the Veteran’s lumbar spine disability is warranted. Regarding the matter of entitlement to a TDIU due to the lumbar spine disability for which a higher rating is sought, the AOJ must address this matter, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Also, as a component of the claim for increased rating for lumbar spine disability, any action with respect to this claim could affect the Veteran’s entitlement to a TDIU due to that disability, Cf. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Hence, the TDIU matter is being remanded, as well. While these matters are on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain all outstanding, pertinent records. The Board notes that in January 2020, the Veteran indicated he is in receipt of Social Security Administration (SSA) disability benefits with an SSA letter indicating that the Veteran was considered disabled since 2016. It does not appear that complete records related to SSA’s determination(s) for the Veteran have been obtained, although such records may well be relevant to the claims on appeal. See Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). As such, on remand, the AOJ should undertake appropriate action to obtain complete SSA records, to include the SSA decision(s), and the medical records relied upon in reaching the decision(s). The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (to include regarding any private (no-VA) treatment and/or employment), explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103 (b)(1); but see 38 U.S.C. § 5103 (b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. Adjudication of the higher rating claim on appeal should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. The matters are hereby REMANDED for the following action: 1. Obtain from the SSA any determination(s) pertinent to the Veteran’s claim(s) for SSA benefits, as well as any medical records relied upon concerning the claim(s). Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include any private (non-VA) records and/or employment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA spine examination, by an appropriate medical professional, for evaluation of his service-connected lumbar spine disability. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the lumbar spine (expressed in degrees), in active and passive motion, and on weight bearing and non-weight bearing (as appropriate). 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 so state and explain why. The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which motion limiting pain begins. Also, the examiner must describe the frequency, duration, characteristics, and severity of reported flare-ups of lumbar spine disability. Therefore, if the Veteran is not examined during a flare-up, based on consideration of the examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional range of motion loss of the lumbar spine. Additionally, the examiner should identify the presence of any ankylosis of the lumbar spine, and state whether such ankylosis is favorable or unfavorable. The examiner should also indicate whether the Veteran has any neurological manifestation(s) of lumbar spine disability. If so, for each identified manifestation, the examiner should clearly indicate whether such constitutes a separately ratable disability, and, if so, should assess the severity of such disability as mild, moderate, moderately severe, or severe. Further, considering all orthopedic and neurological findings, the examiner should also provide specific findings as to the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to his disc disease that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his lumbar spine disability, the examiner should specify whether, over the past 12 months, such episodes have had a total duration of (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the higher rating and TDIU claims on appeal, considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority (to include, with respect to the higher rating claim, consideration of whether staged rating is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.