Citation Nr: 21013754 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-38 856 DATE: March 10, 2021 REMANDED Entitlement to a disability evaluation in excess of 20 percent for lumbosacral strain/degenerative arthritis of the spine/disc displacement is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to March 1970. These matters come before the Board of Veterans Appeals (Board) on appeal from an October 2014 Rating Decision, of which the Veteran was not notified until December 2014. The Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing in March 2019. A transcript of that hearing has been associated with the claims file. In correspondence dated in November 2020, the Veteran was notified that the VLJ who conducted his March 2019 hearing was no longer employed at the Board and given the opportunity to request another Board hearing. As the Veteran did not respond within the requisite time period, the Board will proceed with the appeal using the March 2019 Travel Board hearing transcript of record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based upon TDIU is part of an increased disability claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, in July 2015 correspondence in support of the Veteran’s claim of entitlement to a higher evaluation for his back symptomatology, he indicated that he was unable to work due to his symptoms. Additionally, the report of an October 2014 VA Back (Thoracolumbar Spine) Conditions examination indicated that the Veteran worked as a butcher but due to the pain in his back and limited motion, he was forced to retire several years ago as he was unable to stand for long periods of time or lift heavy objects as required by the job. Although the October 2014 Rating Decision (and all Rating Decisions dated thereafter) indicated “Individual Unemployability Denied,” it does not appear that the RO has ever explicitly adjudicated a claim of entitlement to a TDIU on the merits. As such, the issue of entitlement to a TDIU has been reasonably raised by the record and is thus properly before the Board as part of the Veteran’s increased rating claim. The Veteran seeks entitlement to a disability evaluation in excess of 20 percent for lumbosacral strain/degenerative arthritis of the spine/disc displacement as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. First, the Veteran’s claim of entitlement to a TDIU must be properly developed. The RO must issue a notice letter to the Veteran concerning his claim for entitlement to a TDIU as well as request that the Veteran fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Additionally, a review of the record reveals that various submissions were sent on the Veteran’s behalf to the Office of Workers’ Compensation Programs (OWCP) under the U.S. Department of Labor in support of claims for disability compensation programs. As mentioned above, in July 2015 correspondence in support of his claim of entitlement to a higher evaluation for his back symptomatology, the Veteran indicated that he was unable to work due to his symptoms. In support of these contentions, he attached a September 2006 correspondence in which a VA nurse practitioner indicated that the Veteran exhibited worsening back pain and muscle spasms since an injury he sustained in the military in 1968, that working can aggravate and precipitate his neck and lower back pain, and that therefore the Veteran would most likely need a job that did not require repetitive movements. This correspondence referenced a September 2006 Form OWCP-5c (Work Capacity Evaluation, Musculoskeletal Conditions) in which the VA nurse practitioner indicated that the Veteran’s cervical degenerative disk disease and chronic low back pain rendered him permanently incapable of performing his usual job. Similarly, a review of the claims file also reveals an October 2004 Form OWCP-5c in which a physician indicated that the Veteran’s severe degenerative joint disease, discogenic disease, neuropathy, diabetes mellitus, and asthma rendered him permanently incapable of performing his usual job; a May 2007 Form OWCP-5c in which a nurse practitioner indicated that the Veteran’s cervical degenerative disk disease and chronic low back pain rendered him permanently incapable of performing his usual job; a November 2009 Form OWCP-5c in which a physician indicated that the Veteran’s severe degenerative joint disease and discogenic disease of the lumbar spine rendered him permanently incapable of performing his usual job; as well as an August 2014 Form OWCP-5c in which a physician indicated that the Veteran’s discogenic disease of the lumbar spine, peripheral neuropathy, and degenerative joint disease of the lumbar spine rendered him permanently incapable of performing his usual job. However, although a handful of Forms OWCP-5c spanning the years 2004 through 2014 were selectively associated with the claims file, the Board observes that the Veteran’s complete file from the OWCP has never been obtained. These records are directly relevant to the Veteran’s increased evaluation claim as well as his TDIU claim. In the case of federal records, VA’s duty to assist requires it to make as many requests as necessary to secure relevant federal records. See 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(2). Thus, on remand, the RO must attempt to obtain such records. Moreover, at his March 2019 Travel Board hearing, the Veteran testified that he could no longer work as a butcher due to his back symptomatology and that he was currently in receipt of Social Security Administration (SSA) disability benefits. However, it does not appear that the Veteran’s SSA records have been requested or associated with the claims file. Consequently, as such records appear to be relevant to the instant claims, a remand is necessary in order to obtain any determination pertinent to the Veteran’s claim for SSA benefits, as well as any medical records relied upon concerning that claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is only required to obtain Social Security records when those records are potentially relevant to the claim on appeal, i.e., those that relate to the injury for which benefits are sought and have a reasonable possibility of helping to substantiate the claim). Finally, in his February 2021 Post-Remand Brief, the Veteran’s representative indicated that his disability had worsened, and that the most recent VA Back (Thoracolumbar Spine) Conditions examination, conducted approximately two years ago in March 2019, was too old to adequately evaluate the severity of the Veteran’s service-connected lumbosacral symptomatology. The March 2019 VA Back (Thoracolumbar Spine) Conditions examination indicated that the Veteran did not exhibit muscle spasm of the thoracolumbar spine, while VA treatment records dated as recently as February 2020 show that the Veteran was prescribed cyclobenzaprine (a muscle relaxant) specifically to treat muscle spasm of the low back. As such, the Board finds that a contemporaneous VA examination should be obtained on remand. See VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). In particular, the examiner should comment on whether the Veteran’s service-connected lumbosacral disability causes muscle spasm, and discuss the effect of the Veteran’s lumbosacral disability on any occupational functioning and activities of daily living. The matters are REMANDED for the following action: 1. Issue a notice letter to the Veteran concerning his claim of entitlement to a TDIU. Additionally, request that the Veteran fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Obtain updated VA treatment records. 3. Attempt to obtain the Veteran’s federal records from the U.S. Department of Labor’s Office of Workers’ Compensation Programs. Fully document all requests made for those records as well as any responses received. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, then issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made any why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. Attempt to obtain the Veteran’s relevant records from the SSA, to include any determination pertinent to the Veteran’s claim for SSA disability benefits, as well as any medical records relied upon concerning that claim. Fully document all requests made for those records as well as any responses received. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, then issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made any why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. After receipt of outstanding federal records, or confirmation that records are not available, schedule the Veteran for appropriate VA examination to identify the current nature and severity of his service-connected lumbosacral strain/degenerative arthritis of the spine/disc displacement. The examiner should provide a full description of the Veteran’s disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the applicable rating criteria, to include whether the Veteran’s service-connected lumbosacral disability causes muscle spasm. The examiner is also asked to discuss the effect of the Veteran’s lumbosacral disability on any occupational functioning and activities of daily living. (Continued on the next page)   A complete rationale for all opinions should be provided. 6. Once the above development has been completed, readjudicate the claims. If any benefit sought is not granted, then the Veteran should be furnished with a Supplemental Statement of the Case, with copy to the Veteran’s representative, and afforded an opportunity to respond before the record is returned to the Board for further review. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.