Citation Nr: 21006348 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-50 674 DATE: February 3, 2021 REMANDED Entitlement to a disability rating exceeding 20 percent for a low back strain with degenerative changes is remanded. Entitlement to a disability rating exceeding 40 percent for carpal tunnel syndrome and ulnar nerve entrapment at the elbow affecting the right upper extremity is remanded. Entitlement to a disability rating exceeding 20 percent for carpal tunnel syndrome and ulnar nerve entrapment at the elbow affecting the left upper extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty and inactive duty for training including a period of active duty from July 2009 to April 2010. This appeal comes to the Board of Veterans’ Appeals (Board) from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2020. At the hearing, the Veteran and his representative indicated that the Veteran’s disabilities on appeal have worsened in severity since the last VA examinations of the disabilities. The Veteran also indicated there may be outstanding relevant records including private treatment records and Social Security Disability benefits records. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (CAVC) held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In this case, the record raises TDIU, as the Veteran has indicated that he is unable to work as a result of his service-connected back and upper extremity disabilities. See, e.g. November 2020 hearing testimony. Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. However, the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and should be considered in the first instance by the AOJ. While the Veteran’s combined disability rating is 100 percent for the period on appeal, special monthly compensation (SMC) may be warranted under 38 U.S.C. § 1114(s) under certain circumstances. For example, the Veteran may be entitled to SMC if the AOJ assigns the Veteran a 100 percent disability rating for a single disability and VA finds that TDIU is warranted based solely on a disability or disabilities other than the disability that is rated at 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008) (analyzing 38 U.S.C. § 1114(s)). On remand, the AOJ should contact the Veteran and his representative and request their assistance in locating and obtaining all outstanding relevant records and offer the Veteran an opportunity to attend additional VA examinations of his disabilities of the back and upper extremities. Thereafter, the AOJ should readjudicate the Veteran’s claims to include the intertwined issue of entitlement to TDIU. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records including private records as well as the Veteran’s Social Security Administration (SSA) disability benefits records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding identified relevant records with the Veteran’s claims file, the AOJ should schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected disabilities of the back and upper extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must 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 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.