Citation Nr: 22011622 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 18-09 050 DATE: March 1, 2022 REMANDED Entitlement to a rating in excess of 40 percent for low back disability prior to August 10, 2016, and to a rating in excess of 20 percent, thereafter, is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1986 to January 1994. This matter is on appeal before the Board of Veterans Appeals (Board) from February 2016 and September 2016 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, a Board hearing was held before the undersigned; a transcript of the hearing is of record. The Board notes that the claim for TDIU is considered on appeal due to it being raised by the record in accordance with Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). See Veteran's October 2021 hearing testimony, indicating that he recently had to stop working due to service-connected disability. 1. Entitlement to a rating in excess of 40 percent for low back disability prior to August 20, 2016, and to a rating in excess of 20 percent, thereafter, is remanded. The Veteran was most recently afforded a VA examination to assess the current severity of his service-connected low back disability in August 2016. VA treatment records show that the Veteran underwent a lumbar spine MRI in November 2021. In a subsequent December 2021 VA pain management note, it was noted that the MRI had shown worsening lumbar spondylosis/bilateral foraminal stenosis at L4-5 and L5-S1 and that the Veteran had been experiencing worsening lumbar pain. As a result, he was to be scheduled for a neurosurgery consultation. Given that these recent VA treatment records indicate that the lumbar spine disability has worsened since the August 2016 examination, a remand is appropriate to afford the Veteran with an updated VA examination to assess the current severity of the disability prior to final adjudication of this claim. 2. Entitlement to service connection for cervical spine disability is remanded. In a January 2022 medical opinion, a VA anesthesiologist indicated that he had reviewed imaging and reports regarding the Veteran's neck complaints dating back as far as 2004. The anesthesiologist noted that at that time the Veteran had been diagnosed with spondylosis by MRI and X-ray. The anesthesiologist indicated that he strongly believed that the Veteran's spondylosis was associated with his active duty. The anesthesiologist did not provide a rationale for this opinion. The Board notes that the Veteran was provided with a compensation and pension examination concerning the cervical spine in February 2016. However, the examiner only addressed whether a causal relationship existed between the Veteran's current cervical spine disability and his service-connected lumbar spine disability, indicating that there was no relationship between the Veteran's lumbar spine disease and cervical spine disease and that the Veteran's history was consistent with dizziness and a fall from taking gabapentin, which produced injury to the shoulder. Given that the January 2022 medical opinion suggests a potential direct relationship between current cervical spine disability and military service and given that the earlier February 2016 opinion did not address such a potential relationship, a remand is required to obtain a supplemental medical opinion from a qualified medical professional concerning this potential relationship. On remand, the medical professional should also provide opinions concerning the likelihood that the Veteran's current cervical spine disability has been caused or aggravated by his service-connected lumbar spine disability. 3. Entitlement to a TDIU is remanded. As noted above, a claim for TDIU has been raised by the record. In this regard, at the October 2021 Board hearing, the Veteran testified that he resigned from his IT position in lieu of termination in January 2021, noting that the pain medication he was taking for his service-connected low back disability was affecting his short-term memory. Similarly, January 2021 VA treatment records show that the Veteran reported that his employment was terminated due to an inability to pass tests that were a condition of his employment. In conjunction with the problem in occupational functioning, the Veteran noted that he continued to have difficulty with concentration, focus and feeling like he could not retain information, and that he was concerned that the medications he was taking were possibly worsening his cognition. As the TDIU claim has been recently raised and has not been developed by the agency of original jurisdiction (AOJ), remand for such development is appropriate. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated since December 2021. 2. Provide the Veteran with VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Ask him to complete the form and return it to the AOJ. Conduct any additional appropriate development of the TDIU claim, to include obtaining any available pertinent information from the Veteran's former employer(s), if necessary, and/or any additional medical opinions or examinations, if necessary. 3. After the development in #1 is completed, arrange for a supplemental medical opinion concerning the likely etiology of the Veteran's current cervical spine disability from an appropriate examiner. The medical professional should review the claims file in conjunction with the examination. This review should include the service treatment records; the post-service VA treatment records; any pertinent post-service private treatment records; the February 2016 VA examination report with accompanying medical nexus opinion; the January 2022 VA medical nexus opinion, indicating that the VA anesthesiologist, Dr. DPD, had reviewed imaging and reports as far back as 2004 and strongly believed that the Veteran's cervical spondylosis is associated with the Veteran's active duty; and any other information of record deemed pertinent. The medical professional is then asked to provide medical opinions in answer to the following questions: A. Is the Veteran's current cervical spine disability at least as likely as not directly related to his military service? B. Is it at least as likely as not that the Veteran's current cervical spine disability has been caused by his service-connected lumbar spine disability? C. Is it at least as likely as not that the Veteran's current cervical spine disability has been aggravated by his service-connected lumbar spine disability? If aggravation is found, the examiner should identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the service-connected disability. The examiner should explain the rationale for each opinion provided. 4. After the development in #1 is completed, schedule the Veteran for an examination by an appropriate examiner to determine the current severity of the Veteran's service-connected lumbar spine disability. The claims file should be made available for review in conjunction with the examination. 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. The examiner should also comment on the impact the service-connected low back disability has on the Veteran's ability to work. 5. Thereafter, readjudicate the claims. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.