Citation Nr: 20048827 Decision Date: 07/21/20 Archive Date: 07/21/20 DOCKET NO. 15-11 416 DATE: July 21, 2020 REMANDED Entitlement to a noninitial disability rating in excess of 20 percent from January 15, 2010 to August 12, 2014; in excess of 40 percent from August 13, 2014 to November 13, 2018; and in excess of 50 percent since November 14, 2018 for the Veteran’s service-connected lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. INTRODUCTION The Veteran served on active duty from July 1980 to September 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided sworn testimony before a Veterans Law Judge (VLJ) at an August 2018 Board hearing. A hearing transcript was prepared and has been associated with the Veteran’s electronic claims file. In March 2020, VA sent a letter to the Veteran notifying her that the VLJ who conducted her hearing was no longer available to decide her case, and asking her whether she desired to have another hearing. The Veteran was notified to respond within 30 days, and she was told that if no response was received, the Board would assume she did not wish to appear at another hearing. The Veteran did not respond within the 30-day deadline; thus, the Board shall proceed with its appellate consideration, without an additional Board hearing. The undersigned VLJ has been assigned to consider this matter pursuant to 38 C.F.R. § 19.3(a) (2018). In November 2018, the Veteran submitted an appellate brief where she alleged that her lumbar spine claim “had not been properly adjudicated from the very beginning.” She further alleged that several statements in the January 14, 2010 Board decision were inaccurate or incorrect and that nobody reviewed her military records prior to the initial adjudication of her claim. She also raised duty to assist challenges regarding VA examinations referenced in the January 14, 2010 Board decision. If the Veteran wishes to challenge any of the final determinations made in the January 14, 2010 Board decision, her only recourse is to file a motion with the Board requesting revision of the final Board decision based upon clear and unmistakable error (CUE). The Board is without jurisdiction to consider the matter at this time. The Veteran has also requested clarification regarding an oral statement from the DFAS (Defense Finance Account Service) purportedly informing the Veteran that VA owes her $12,000 in retroactive pay. See November 2018 appellate brief. The Veteran has not submitted any documentation from DFAS corroborating her allegations. All code sheets of record appear accurate. The Board is without jurisdiction to consider this matter, and the Veteran is encouraged to follow up with her local RO if she still has concerns over this issue. Procedural History The Board finds that a brief summary of the Veteran’s procedural history will be helpful to understanding the issue on appeal. On January 14, 2010, the Board issued a decision granting a higher 20 percent rating for the Veteran’s service-connected lumbar spine disability. The Board’s decision was complicated, and seemingly held that a 10 percent rating was warranted for the Veteran’s lumbar spine vertebral body deformity and another 10 percent rating was warranted for limitation of motion of the lumbar spine under the applicable rating criteria. Pursuant to 38 C.F.R. § 4.25, these separate rating combined to a 20 percent rating for the entire appellate period. The Board concluded that the preponderance of the evidence was against a disability rating in excess of 20 percent for the Veteran’s service-connected lumbar spine disability. The Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims (Court), and consequently the Board decision became final on January 14, 2010, the date stamped on the first page of the decision. 38 C.F.R. § 20.1100 (2018). The Board’s January 14, 2010 decision was implemented in an April 2011 rating decision. Instead of simply granting a higher 20 percent rating for the Veteran’s service-connected lumbar spine disability, the RO granted a separate 10 percent rating for limitation of motion of the lumbar spine, effective October 1, 2002, which combined with the 10 percent rating already in effect since October 1, 2002 for lumbar spine vertebral body deformity, to equal a 20 percent rating for the entire period previously on appeal. In August 2011, the Veteran submitted a Notice of Disagreement with the ratings assigned in the April 2011 rating decision, which implemented the January 14, 2010 Board decision. However, the Veteran had no legal basis upon which to challenge the implementation of the Board’s January 14, 2010 decision in the April 2011 rating decision, as any appeal of the Board’s decision was required to be timely filed with the Court. Nevertheless, the RO accepted the August 2011 Notice of Disagreement as a challenge to the April 2011 rating decision, seeking a noninitial disability rating in excess of 20 percent for the Veteran’s service-connected lumbar spine since January 15, 2010—the day after the Board’s decision became final. In January 2015, the RO issued a Statement of the Case which denied a disability rating in excess of 20 percent for the Veteran’s service-connected lumbar spine disability for the time period between January 14, 2010 and August 12, 2014, but granted a higher 40 percent rating for the Veteran’s service-connected lumbar spine disability, effective August 13, 2014. The time period on appeal should have started on January 15, 2010, the day after the final January 14, 2010 Board decision. On the same day, the RO issued a January 2015 implementing rating decision, and the Veteran perfected an appeal through the timely filing of a VA form 9, Substantive Appeal, in March 2015. In the March 2015 Substantive Appeal, the Veteran requested a 40 percent rating for her service-connected lumbar spine disability dating back to October 1, 2002. As stated above, the January 14, 2010 Board decision adjudicated the Veteran’s request for an increased rating claim for the period between October 1, 2002 and January 14, 2010, and became final. The period on appeal for the present matter begins on January 15, 2010. There is no legal basis upon which to consider a higher rating for the Veteran’s service-connected lumbar spine disability, for the period prior to January 15, 2010, as the Board does not have jurisdiction over the matter. The Veteran’s appeal was certified to the Board in October 2016. In August 2019, the Board issued a decision remanding the claim. It is unclear why the Board characterized the issue as entitlement to a rating in excess of 10 percent between January 14, 2010 and August 12, 2014 and in excess of 40 percent thereafter for service-connected lumbar disability, when the issue on appeal at the time of the August 2019 Board decision was entitlement to a rating in excess of 20 percent between January 15, 2010 and August 12, 2014 and in excess of 40 percent thereafter for service-connected lumbar disability. In a January 2020 rating decision, the RO corrected the April 2011 rating decision by discontinuing the separate 10 percent ratings in effect from October 1, 2002 to August 12, 2014, and replacing them with a single 20 percent rating for the Veteran’s service-connected lumbar disability. This change was purely procedural in nature and did not substantively change the combined rating for period effected. The January 2020 rating decision also granted a higher 50 percent rating for the Veteran’s service-connected lumbar spine disability, effective November 14, 2018. The claim was readjudicated in a January 2020 Supplemental Statement of the Case, and recertified to the Board for appellate consideration in February 2020. Despite the Veteran’s repeated allegations that her increased rating claim for the lumbar spine dates back to October 1, 2002, and her efforts to circumvent the finality of the January 14, 2010 Board decision—based on the above procedural history—the proper issue for appellate consideration is entitlement to a noninitial disability rating in excess of 20 percent between January 15, 2010 and August 12, 2014, in excess of 40 percent from August 13, 2014 to November 13, 2018, and in excess of 50 percent thereafter, for the Veteran’s service-connected lumbar spine disability. REASONS FOR REMAND A. Increased Rating – Service-Connected Lumbar Spine Disability Although the Board sincerely regrets the additional delay, the Veteran’s claim seeking a higher noninitial disability rating for her service-connected lumbar spine disability must be remanded for compliance with the Board’s August 2019 remand directives and to ensure there is a complete record upon which to decide the Veteran’s appeal. In the August 2019 Board decision, the RO was requested to (1) ask the Veteran for releases and obtain any identified private treatment records, to include the records of Dr. JM; (2) obtain VA treatment records from Alpharetta, Georgia since August 2014; and (3) schedule a VA examination with an orthopedist to assess the severity of the Veteran’s service-connected lumbar spine disability. The VA examiner was requested to issue a retrospective medical opinion addressing the nature of the Veteran’s lumbar spine disability since August 2011, and opine on whether the Veteran’s lumbar spine has been manifested by unfavorable ankylosis within the appellate period. If the VA examiner concluded there was no unfavorable ankylosis within the appellate period, s/he were requested to address Dr. JM’s November 2018 statement to the contrary. A Board remand confers on the Veteran the right to substantial compliance with the remand orders, and imposes on VA a concomitant duty to ensure such compliance. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). In August 2019, the RO requested that the Veteran identify any outstanding relevant private treatment records, to include the records of Dr. JM, and authorize VA to obtain those records for evidentiary consideration. The Veteran responded in September 2019 with a release authorizing VA to obtain the records of Dr. JM from AOI and POS, as well as the records of Dr. DG, and the medical records were obtained and associated with the electronic claims file for evidentiary consideration. There was substantial compliance with the Board’s remand directives. The RO was unable to locate any medical records from any VA facilities in Alpharetta, Georgia or Atlanta, Georgia since August 2014. The RO notified the Veteran regarding the unavailability of the requested records in a November 2019 notification letter and reiterated the negating finding in the January 2020 Supplemental Statement of the Case. There was substantial compliance with the Board’s remand directives. The Veteran attended a VA examination in December 2019 to assess the severity of her service-connected low back disability. The VA examiner performed all required testing, as directed by the Board’s remand decision. The VA examiner found no ankylosis of the spine, and addressed the November 2018 commentary by Dr. JM, as requested by the Board. Regrettably, the VA examination was not conducted by an orthopedist, as explicitly requested by the Board, and the VA examiner did not provide a retrospective medical opinion addressing the nature of the Veteran’s service-connected lumbar spine disability since August 2011. There has not been substantial compliance with the Board’s remand directives in this regard, and a remand for corrective action is warranted. Upon remand, the Veteran should be scheduled for an updated VA examination. The Board requests that the VA examiner consider the time period dating back to January 15, 2010 in his/her retrospective medical opinion, as this would cover the proper period on appeal. See Chotta v. Peake, 22 Vet. App. 80 (2008) (approving the use of retrospective medical opinions to fill evidentiary gaps in the record); Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). B. Entitlement to a TDIU The issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). The Veteran’s present claim seeking an increased rating for her service-connected lumbar spine disability has given rise to a new claim for entitlement to a TDIU, as reasonably raised by the record. In a November 2018 letter, Dr. JM explained that the Veteran’s lumbar spine disability was negatively impacting her quality of life. He stated that she was only able to perform her past duties as a paralegal because her previous employer allowed her to work from home where she was able to control her environment. Unfortunately, continuation of this reasonable accomodation was denied in late 2017, the Veteran was forced into early retirement in April 2018, and she was unsuccessful as finding new employment, given her medical issues. In a letter received in September 2019, the Veteran stated that she became unemployed in 2018 due in part to a request for reasonable accommodations related to her service-connected lumbar spine disability. At the December 2019 VA examination, the Veteran reported that she had recently found new employment where she worked from home. She did not indicate when she began her new employment. The record raises the possibility of entitlement to a TDIU during the Veteran’s period of unemployment; however, the exact timeline of her employment situation remains unclear. The Veteran has been in receipt of a total combined disability rating of 70 percent since August 13, 2014; thus, the schedular TDIU requirements have been satisfied for the period between April 2018 and December 2019, during which she may have been unemployed. See 38 C.F.R. § 4.16(a) (2018). As an inferred claim for TDIU has been reasonably raised by the record, a remand is warranted, as the Veteran must be provided with Veterans Claims Assistance Act (VCAA) notice regarding the evidence necessary to substantiate a claim of entitlement to a TDIU; given an opportunity to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability; and for all employers identified in the completed VA form 21-8940, the RO must undertake reasonable efforts to secure a completed VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The matters are REMANDED for the following action: 1. Send the Veteran a VCAA notice letter informing her of the evidence required to substantiate his claim for a TDIU. She should also be sent and asked to complete a VA form 21-8940, Application for Increased Compensation Based on Unemployability. For all employers identified in the VA form 21-8940, undertake reasonable efforts to obtain a completed VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Thereafter, the RO should conduct any additional evidentiary development deemed necessary. 2. Schedule a VA examination to assess the current severity of the Veteran’s service-connected lumbar spine disability. The VA examination must be conducted by an orthopedist. If this is not possible, the RO must explain why the requested action cannot be completed, and shall schedule a VA examination with another VA examiner, deemed appropriate by the RO. **The scheduling of this VA examination may be delayed given the circumstances surrounding the global COVID-19 pandemic. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. The VA examiner is also requested to provide a retrospective medical opinion regarding the severity of the Veteran’s service-connected lumbar spine disability since January 15, 2010 based on the evidence of record and the Veteran’s statements, irrespective of the August 2014 and December 2019 VA examination results. The VA examiner is requested to address whether the Veteran has experienced unfavorable ankylosis at any point during this time period, and must explain why or why not. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical experience and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante, 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.