Citation NR: 9740385 Decision Date: 12/04/97 Archive Date: 12/12/97 DOCKET NO. 96-47 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for service-connected chronic lumbosacral strain, currently rated as 20 percent disabling. 2. Entitlement to an increased rating for service-connected chronic hamstring strain of the right knee, currently rated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney at Law ATTORNEY FOR THE BOARD Louis J. George, Associate Counsel REMAND The appellant served on active duty from November 1993 to May 1995. This claim comes before the Board of Veterans’ Appeals (Board) on appeal from a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied entitlement to an increased rating for service-connected chronic lumbosacral strain, rated as 20 percent disabling; and an increased rating for service-connected chronic hamstring strain, right knee, rated as 10 percent disabling. This appeal also arises from an October 1996 rating decision which denied entitlement to a total disability rating based on individual unemployability (TDIU). Although further delay is regrettable, additional evidentiary development must be accomplished prior to further consideration of the appellant’s claims. In the notice of disagreement (NOD) related to the issue of entitlement to increased disability ratings for the appellant’s low back and right knee disabilities, his representative requested that the RO “[o]btain all the veteran’s VA medical records from the VA medical facilities where he has been examined or treated for his service- connected conditions.” Although the claims folder does not include any specific reference to VA treatment, the RO did not attempt to obtain any VA treatment records or attempt to verify whether such records existed. Since these records, if they exist, could be relevant to the evaluation of the disabilities on appeal, the Board will REMAND this claim so that the RO may obtain VA medical records related to treatment for the appellant’s service-connected low back and right knee disabilities. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the Secretary and the Board, and must be obtained if the material could be determinative of the claim). Related to his TDIU claim, the appellant claims that his service-connected low back and right knee disabilities prevent him from securing or following any substantially gainful occupation. In his TDIU application (VA Form 21- 8940), the appellant claimed that he last worked full-time in May 1995, and that he became too disabled to work in August 1995. In addition, the appellant listed his last employment as ending in November 1993, before his military service began. In seeming contradiction, the report of the March 1996 VA general medical examination indicated that the appellant currently was working. In view of the above discrepancy as to the appellant’s current employment status, the Board will REMAND this claim so that the RO may ask the appellant to complete an additional employment statement. The RO should instruct the appellant to list all employment for the five year period preceding the date on which he claimed to have become too disabled to work, and all employment for the entire time after that date. Upon receipt of this information, the RO should request from the appellant’s employers information related to his employment, in accordance with the VA Adjudication Procedure Manual M21-1 (M21-1), specifically, Part VI, Paragraph 7.08b. Furthermore, the RO must request such information from the employer identified in the March 1996 VA general medical examination. In his TDIU application, the appellant also indicated that he received/expected to receive workers compensation benefits. Since records involving these benefits may be relevant to his TDIU claim, the RO should obtain all medical or other records related to his receipt of workers compensation benefits, as part of this REMAND. The appellant’s representative claimed that the examining physician who conducted the VA examinations did not express any opinion as to the appellant’s employability. The appellant’s representative also requested that the RO obtain an “expert vocational opinion” as to whether the appellant’s service-connected disabilities alone caused him to be unemployable, and asked that the RO conduct a current social and industrial survey to determine the appellant’s ability to work. So as to address the appellant’s contentions, as part of this REMAND, the RO should ask the examiner who conducted the VA examinations of March 1996 and September 1996 to thoroughly review the claims folder, including all examination reports and any VA medical records obtained pursuant to this remand, and render an opinion as to the effect the appellant’s service-connected disabilities have on his ability to work. Furthermore, the RO should ensure that a social and industrial survey is conducted, in accordance with M21-1, Part III, Paragraphs 8.01-8.04. Thereafter, the RO should readjudicate the claims on appeal, with consideration given to all of the evidence of record. Related to entitlement to increased ratings for the appellant’s low back and right knee disabilities, the RO should ensure that its adjudication consider all potentially applicable diagnostic codes, as detailed below. The U.S. Court of Veterans Appeals has held that a service- connected disability may be assigned separate disability ratings under more than one diagnostic code, as long as none of the symptomatology for any of the conditions is duplicative of or overlapping with the symptomatology of the other conditions. See Esteban v. Brown, 6 Vet. App. 259, 261-262 (1994). In a precedent opinion, the VA General Counsel held that separate ratings are available for disabilities manifested by instability of the knee joint (rated under Diagnostic Code 5257) and limitation of motion (rated under Diagnostic Codes 5260 and 5261). See VAOPGCPREC 23-97. Accordingly, in the readjudication of the claim for an increased rating for the appellant’s service-connected right knee disability, the RO should consider if there is additional disability sufficient to warrant the assignment of a separate disability evaluation pursuant to Diagnostic Codes 5260 or 5261. Since these diagnostic criteria concern the evaluation of a joint based on limitation of motion, consideration also should be given to whether pain on use results in additional limitation of motion, excess fatigability, or weakness. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, since the appellant’s low back disability involves a joint which may be rated based on limitation of motion, the RO should exercise care to consider the applicability of DeLuca v. Brown, and give adequate consideration to whether the rating assigned addresses functional loss due to pain under 38 C.F.R. § 4.40 (including pain on use or during flare-ups) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. For both increased rating claims, the RO should ensure that in its readjudication of each claim, entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is considered. Accordingly, this claim is REMANDED for the following: 1. Contact the appellant at his current address of record, and ask him to provide the dates and locations of all VA and private medical treatment received for his service-connected disabilities from May 1995 to the present. Secure appropriate releases and obtain the treatment records. Associate all records received with the claims folder. 2. Request a copy of all medical or other records related to any claim filed by the appellant for workers compensation benefits, to include copies of any decisions awarding or denying such benefits. Records relating to any discontinuance of benefits also should be obtained. Document all efforts to obtain such materials, and associate all records received with the claims folder. 3. Ask the appellant to submit an up-to- date employment statement. The RO should advise the appellant to list all employment, including part-time employment. The appellant also should be requested to provide the names of any former or potential employers who did not hire him or terminated his employment because of his service-connected low back and/or right knee disabilities. Upon receipt of this information, the RO should request from the appellant’s employers information related to his employment, in accordance with the VA Adjudication Procedure Manual M21-1 (M21- 1), specifically, Part VI, Paragraph 7.08b. The RO must request such information from the employer identified in the March 1996 VA general medical examination. 4. Thereafter, the claims folder, including the reports of the VA examinations of March 1996 and September 1996, as well as all additional medical evidence obtained pursuant to Paragraphs 1 and 2, should be reviewed by the VA physician who conducted the 1996 examinations. The examiner should render an opinion as to how the appellant’s service-connected disabilities affect his ability to work. The factors upon which the opinion is based must be indicated. If any other conditions affect the appellant’s employability, these conditions should be identified and their role distinguished as much as possible. 5. Arrange for a social and industrial survey. The RO should ensure that the survey is conducted in accordance with M21-1, Part III, Paragraphs 8.01-8.04. In the survey, the field examiner should ascertain if the appellant is working. Family members, members of the community, coworkers or former coworkers, and the appellant should be interviewed. The purpose of the survey is to gather data upon which to assess the effects of the service-connected low back and right knee disabilities on the appellant’s ability to secure or follow a substantially gainful occupation. 6. After completion of the above development, the RO should readjudicate the claims for increased ratings for service-connected chronic lumbosacral strain and chronic hamstring strain of the right knee, with consideration given to all of the evidence of record and all potentially applicable diagnostic codes and regulations. In the adjudication of the above claims, the RO should consider whether the evidence warrants referral for consideration of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1). 7. The RO then should readjudicate the claim for a total disability rating based on individual unemployability (TDIU), with consideration given to all of the evidence of record. 8. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished with a supplemental statement of the case (SSOC) and provided a reasonable opportunity to respond thereto. While this case is in remand status, the appellant and his representative are free to submit additional evidence and argument on the questions at issue. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109, 112 (1995). Thereafter, the case should be returned to the Board for further review, as appropriate. The appellant need take no action until he is so informed. The purpose of this REMAND is to obtain additional evidence. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (Historical and Statutory Notes) (West Supp. 1997). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. J. SHERMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997). - 2 -