Citation Nr: 1736589	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-01 948	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an increased disability rating for lumbar strain with degenerative disc disease (DDD) currently evaluated as 10 percent disabling.

2.  Entitlement to an increased disability rating for left lower extremity radiculopathy currently evaluated as 10 percent disabling from September 12, 2013.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Arkansas Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Jennifer R. White, Counsel


INTRODUCTION

The Veteran served on active duty from February 1968 to April 1972.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a  December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In September 2013, the Veteran testified at a travel board hearing before the undersigned Veterans' Law Judge (VLJ).  A transcript of the hearing has been associated with the claims file.

A February 2017 rating decision granted service connection for left lower extremity radiculopathy, secondary to the Veteran's back disability.  The Board takes this issue up as part and parcel of the appeal for an increased rating for a back disability.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability.  Id.  As will be discussed in greater detail below, during the pendency of the appeal for an increased rating for lumbar strain with DDD, the matter of unemployability has been raised by the record.  The TDIU claim has been recognized as part and parcel of the increased rating appeal and is before the Board.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

An April 2017 document indicates that the AOJ attempted to obtain the Veteran's records from the Social Security Administration (SSA) with no apparent reply.  Records from that agency should be obtained.  Id.;  Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

Ongoing medical records should also be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim.

2.  Obtain and associate with the claims file any pertinent VA treatment records dating since April 2017 from the Little Rock VA Medical System.

3.  After the above is complete, readjudicate the Veteran's claim with consideration of all of the evidence associated with the record since the most recent AOJ adjudication.  If the claims on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
M. H. HAWLEY	
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  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) (2016).
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