Citation Nr: 21021396 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-13 982 DATE: April 12, 2021 REMANDED Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease (DDD) (lumbar spine disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2004 to September 2004 and from October 2004 to February 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In October 2019 and September 2020, the Board remanded the appeal for additional evidentiary development. 1. Entitlement to a rating in excess of 40 percent for lumbar spine disability. The Veteran contends that his lumbar spine disability manifests with back pain that prevents him from getting out of bed two weeks out of month, and that laying down and resting was recommended for back pain. See Hearing Transcript (November 2018). As an initial matter, the board notes that the rating schedule indicates that diseases of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes. Here, the Veteran’s lumbar spine disability is rated under Diagnostic Code 5243 under the Formula for Rating IVDS based on Incapacitating Episodes, which mandates that the adjudicator evaluate the disability either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71A. To ensure that VA has met its duty to assist, the claim must be remanded again for further development. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). First, in its September 2020 remand, the Board requested that copies of the treatment records scanned into VistA are associated with the Veteran’s file. See BVA Decision (September 2020). However, while it appears that an attempt was made to obtain copies of treatment records scanned into VistA, the attempt resulted in duplicates of the records already contained in the Veteran’s file. See CAPRI (December 2020). To date, copies of these scanned non-VA records are not included in the claims file. Therefore, remand is again necessary to associate copies of these scanned records with the claims file. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); Stegall, supra. Second, while the Veteran has submitted some private treatment records from Rush Pain Management and has completed VA 21-4142 Authorization for Release of Information for additional providers, including Premier Medical Group of MS and Baptist Memorial/Memorial Montfort Jones, it appears that most of the private treatment records remain outstanding. To that effect, the Board notes that the Veteran was not notified of the RO’s inability to obtain private treatment records from Premier Medical Group of MS and Baptist Memorial/Memorial Montfort Jones, for whom the Veteran submitted VA Forms 21-4142s. VA has not notified the Veteran of any evidence that it could not obtained the records and afford him an opportunity to provide the outstanding records. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (VA has a heightened duty to assist the appellant in developing his claims). Notably, the Veteran’s VA treatment records indicate that treatment records from Baptist Memorial have been scanned into VistA. Given the above, the Veteran should be afforded an opportunity to complete an authorization for release of the records to VA or to provide these records to VA himself. See 38 C.F.R. § 3.159(c)(1). The appellant is reminded that VA’s duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If she wishes help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining the putative evidence. Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Third, the evidence that has been associated with the claims file suggests a material worsening of the Veteran’s back symptoms since his last VA examination in March 2015. Therefore, reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). It is noted that the March 2015 VA examination reflects that the Veteran did not experience any incapacitating episodes whereas, at his November 2018 Board hearing, the Veteran reported that he experiences back pain that prevents him from getting out of bed two weeks out of month, and that laying down and resting was recommended for back pain. Also, private treatment records show that he rated his back pain 8 out 10 in May 2016 with standing, walking, coughing and sitting aggravating the pain. See Medical Treatment Record - Non-Government Facility (December 2020). It was noted that he was taking Norco four days, because Norco for two days was not sufficient to cover his pain symptoms. Id. His pain was described as severe. Id. VA treatment records from October 2017 show that he was prescribed opioids to treat his back pain. See CAPRI (April 2020). Therefore, remand is warranted for a new VA examination to ascertain the current severity and manifestations of the lumbar spine disability, and specifically whether the Veteran experienced incapacitating episodes of IVDS having a total duration of at least 6 weeks during a 12 month period, during this appeal, with physician prescribed bed rest. 2. Entitlement to a TDIU. The matter of TDIU is inextricably intertwined with the claim for increase. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Furthermore, the Veteran, via his representative, submitted a November 2019 Social Security Earnings Statement, showing that he received Social Security Administration (SSA) benefits, which indicates that there may be outstanding and relevant SSA records. See Income and Tax Statements (December 2019); see also SSOC (July 2020). A remand is required to allow VA to request these records. 38 C.F.R. § § 3.159(c)(2) and (3); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is obliged to attempt to obtain and consider records from SSA). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2017 to the Present. 2. Associate with the claims file copies of all non-VA treatment records that have been scanned into the VA medical records system using VistA Imaging. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his lumbar spine disability to include from Premier Medical Group of MS and Baptist Memorial/Memorial Montfort Jones. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and gives the Veteran opportunity to obtain and submit these records himself. 4. Obtain all SSA records, including a copy of the award letter. Any negative search results should be noted in the record. 5. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. 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. (a.) Indicate whether the Veteran experienced incapacitating episodes of IVDS having a total duration of at least 6 weeks during a 12-month period with physician prescribed bed rest since his last VA examination in 2015. (c.) For TDIU purposes, elicit from the Veteran his complete educational, vocational, and employment history and note his complaints regarding the impact of his lumbar spine disability on employment. The examiner should identify all limitations or functional impairment caused solely by his service-connected lumbar spine disability. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.