Citation Nr: 21027660 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-48 304 DATE: May 6, 2021 REMANDED Entitlement to a rating in excess of 20 percent for thoracic myelopathy disability since May 7, 2015, is remanded. Entitlement to an initial rating in excess of 10 percent for autonomic dysfunction disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1976 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge for a hearing through virtual technology in August 2020. A transcript of the hearing is of record. During the course of the Veteran's appeal for an increased rating for her thoracic myelopathy disability, in the August 2017 rating decision that assigned an increased 20 percent rating for the spine disability, the RO assigned a separate, 10 percent rating for autonomic dysfunction disability, noted as a neurologic manifestation of the thoracic spine disability. As the Veteran has continued to seek an increased rating for her thoracic spine disability, to include the separate rating assigned for autonomic dysfunction disability, both issues are considered as on appeal. As a brief procedural posture of the case, the Board notes that the Veteran filed a claim to resume compensation of service connection for thoracic myelopathy on May 7, 2015. A September 2015 and then an October 8, 2015 rating decision issued awarding and confirming service connection for thoracic myelopathy with autonomic hyperreflexia at an evaluation of 0 percent effective May 7, 2015. Thereafter, in October 2016, the Veteran requested reconsideration of the claim and new and material evidence was associated with the claims file. As new and material evidence was received prior to the one-year expiration period to appeal the denied claim, the October 2015 rating decision (and thereby the September 2015 rating decision) did not become final. 38 C.F.R. § 3.156(b). Thus, the September 2015 rating decision has been identified as the rating action on appeal. 1. Entitlement to a rating in excess of 20 percent for service-connected thoracic myelopathy disability since May 7, 2015, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for autonomic dysfunction disability is remanded. The Veteran has indicated that her service-connected conditions have worsened since she last underwent VA examinations. Review of the claims file shows that she was last evaluated for her service-connected thoracic spine disability, as well as the autonomic dysfunction as a neurological manifestation, in March 2017. At her August 2020 Board hearing, the Veteran testified that since her last examinations, she has used walking sticks for the last two years. She also testified that she has difficulty raising her hands above her head, a "loss" of all sensation, reflexes, and motor skills in her lower extremities, and increased problems with sitting and standing, difficulty walking. She stated that she experiences more frequent, "crippling" flare ups of her symptomatology. The Veteran testified that she was a nurse and that she believes that her back injury is not just a back injury, but also a spinal injury that warrants a rating higher than 20 percent due to the various symptoms/neurologic manifestations. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). As the Veteran now reports additional symptoms that were not present at her last VA examinations in March 2017, and it is unclear whether her thoracic disability and/or autonomic dysfunction disability are manifested by additional symptoms, a remand is warranted to afford the Veteran new VA examinations. While on remand, the RO should undertake appropriate action to obtain all outstanding VA treatment records pertinent to the claims, as well as the records of her treatment by a private chiropractor, as reported during the August 2020 hearing. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. The issue of entitlement to a TDIU rating may be reasonably inferred from the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). A request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability. Id. The March 2017 VA examiners indicated the conditions impact the Veteran's ability to work. Further, at the August 2020 Board hearing, the Veteran stated that she has problems with standing and walking that interfere with her normal activities and she is now unable to work, having previously worked as a nurse. The Board finds that the issue has been raised. The RO has not developed a claim of entitlement to a TDIU. On remand, such development should be completed. The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to submit or identify any outstanding pertinent evidence that has not already been associated with the claims file. The Agency of Original Jurisdiction should then attempt to obtain those records if the appropriate authorization is provided. Notice should be provided to the Veteran in the event that any outstanding private treatment records are unavailable in accordance with 38 C.F.R. § 3.159. 2. Obtain any outstanding VA treatment records and associate those records with the claims file. 3. After the above development is complete schedule the Veteran for an examination to assess the current severity level of her service-connected thoracic myelopathy and autonomic dysfunction disabilities. All necessary testing should be scheduled. In regard to the thoracic myelopathy disability, the examiner must test for pain and record the range of motion for the conditions in active motion, passive motion, weight-bearing, and non-weightbearing conditions and, if possible, with the range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, then the examiner should provide a clear explanation as to why the testing was not conducted. The examiner must also express an opinion as to whether there would be additional functional impairment on repeated use over time or during flare ups. The examiner should assess the additional functional impairment on repeated use or during flare ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that she is not currently experiencing a flare up at the time of the examination, the examiner should still estimate any additional functional loss during flare ups or on repeated use, based on the Veteran's description of the severity, frequency, duration, and/or functional loss manifestations during such episodes. In providing the requested opinions, the examiner must consider and discuss the complete medical history and the Veteran's lay statements regarding her conditions as well as the medical literature regarding autonomic dysreflexia. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration given. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale for all opinions is required. The AOJ must ensure that the examination reports include all information necessary to rate the disabilities, to include consideration of all applicable diagnostic codes and amendments. (Continued on the next page) 4. Undertake appropriate development with respect to the claim for TDIU, to include providing the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and ask that she complete and return the form. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.