Citation Nr: 21061302 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 18-49 680 DATE: October 1, 2021 REMANDED A higher initial disability rating for the service-connected degenerative disease of lumbar spine in excess of 10 percent from March 5, 2008 to January 23, 2018, and in excess of 20 percent thereafter, is remanded. A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active duty service from October 1970 to October 1972. The instant matters are on appeal from a December 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that implemented an August 2014 Board of Veterans' Appeals (Board) decision that granted service connection for degenerative disease of the lumbar spine. In the August 2014 RO decision, the RO assigned a 10 percent disability rating for the entire initial rating period from March 5, 2008 onward. The Veteran appealed the disability rating. In August 2018, the RO granted a 20 percent rating for the stage from January 23, 2018 (date of new VA examination). The appeal remains ongoing because the maximum possible rating has not been given. See A.B. v. Brown, 6 Vet. App. 35 (1993). At this time, additional development is needed before the appeal for a higher initial rating for the lumbar spine disability can be adjudicated. Additionally, the Board has inferred a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The TDIU issue also requires additional development. The Veteran testified before the undersigned Veterans Law Judge at a June 2021 Board hearing. The hearing transcript has been associated with the claims file. 1. Rating the Lumbar Spine Disability The Veteran is currently in receipt of staged ratings for the lumbar spine disability. He contends through his attorney that there is significant functional loss, that should lead to a higher disability rating than that which is prescribed by a mechanical application of the Rating Schedule. Before this argument can be reached, there are questions about whether potentially relevant private treatment records need to be requested. At the June 2021 Board hearing, the attorney had the Veteran describe which treatment providers he has seen to treat the back. It does not appear that all the private treatment records are of record. The Veteran named Dr. Benglis, Jr., with Piedmont Physicians, Atlanta Brain and Spine. The Veteran subsequently provided some records from Piedmont Health System, but it is unclear whether these are all the records from Dr. Benglis, Jr., as they largely pertain to the most recent June 2021 back surgery. A request should be submitted directly to Atlanta Brain and Spine to ensure all records have been requested. The Veteran named Dr. Roy Talley with MD Pain Center. The RO recently tried to get records from this provider, but hit a fee requirement that the organization would not waive. These records appear complete up through December 2020. If the Veteran is still a patient at MD Pain Center, maybe the organization would waive the fee if the request is only for January 2021 to the present. The Veteran named Dr. Thomas Wilson with Neurosurgical Associates, P.C. The record only contains two documents from Dr. Wilsona nexus statement that led to the service connection grant and a letter stating that the Veteran was totally disabled and unable to return to teaching because of the back. The full treatment records should be requested. Finally, the Veteran stated that he participated in physical therapy. It appears that the records are complete for physical therapy. VA's duty to assist the Veteran in requested these private treatment records does not preclude the Veteran from obtaining and submitting the identified treatment records, especially those the provider has refused to send to VA without fee payment, which VA is not authorized to pay. 2. TDIU Due to the testimony that was received at the hearing, the Board is inferring a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). It is not yet ripe for adjudication, however, as the back disability rating will impact the analysis of effects of service-connected disabilities on the ability to obtain or maintain employment. The Veteran has completed a TDIU claim form, and the RO has submitted a VA Form 21-4192 to the most recent employer to provide accurate employment information. The Veteran stated at the Board hearing that he left his job due to the back disability and that he received disability payments related to the job for some time. The Veteran has provided some documentation that serves as proof of this from American General Life Insurance Company. It would be prudent to have a copy of the records that American General Life Insurance Company has, as they may document the nature and degree of the disability and its impact on functioning and work capabilities. The matters are REMANDED for the following actions: 1. After obtaining any necessary releases, attempt to obtain the identified private treatment records, to include all records from Dr. Benglis, Jr., records from January 2021 to the present with Atlanta Brain and Spine, MD Pain Center, and treatment records from Dr. Thomas Wilson. 2. After obtaining any necessary release, attempt to request all records that were provided to American General Life Insurance Company for the disability payments. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.