Citation Nr: 1648537	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  12-29 257	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 20 percent for muscle spasms, cervical spine.

2.  Entitlement to an initial disability rating in excess of 20 percent for muscle spasms, thoracolumbar spine.

3.  Entitlement to a disability rating in excess of 10 percent for arthralgia, left knee.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 


REPRESENTATION

Appellant represented by:	Penelope Gronbeck, Attorney



WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T.Y. Hawkins, Counsel


INTRODUCTION

The Veteran has honorable active duty service with the Army from February 1982 to January 1986.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  

In December 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing.  A transcript of the hearing has been associated with the claims folder.  During the hearing, the VLJ agreed to hold the record open for an additional 60 days to allow for the submission of additional evidence.  Additional evidence has been received and the Veteran has waived initial review of this evidence by the AOJ.  The Board accepts this evidence for inclusion in the record.  
 
The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.

REMAND

Although the Board sincerely regrets the additional delay, it finds that further evidentiary development is necessary before a decision can be made on the appealed claims. These actions, in the long run, may prove beneficial to the Veteran.  

During the Board hearing, the Veteran testified that his service-connected cervical spine, thoracolumbar spine and left knee disabilities worsened in severity.  As it has been more than six years since his last VA examination in November 2010, a new examination is necessary to fully and fairly evaluate the Veteran's disabilities.  Any recent VA and private treatment records should also be obtained.

Also during the hearing, the Veteran stated that, as a result of these disabilities, he is unemployable.  He has therefore raised the issue of TDIU.  A request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted.  Id at 455.  

Here, the record indicates that he is currently unemployed and has not worked since approximately 2008.  The Board therefore finds that the appellant should be afforded an appropriate VA examination to determine whether he is unable to secure or maintain substantially-gainful employment as a result of his service-connected cervical spine, thoracolumbar spine and left knee disabilities.

As the Veteran's claim for TDIU is impacted by the outcome of his other claims, the TDIU claim is considered inextricably intertwined with those claims.  Therefore, a determination as to his entitlement to those claims must be made prior to reaching a decision on his claim for TDIU.

Finally, in an October 2009 written statement, the Veteran said that he had been awarded disability benefits from the Social Security Administration (SSA).  Although it appears that the AOJ made a request for his SSA records, the only records received pertained to disability benefits received by his dependent adult son (pertaining to his request for specially adapted housing).  There is nothing of record indicating that the SSA was unsuccessful in its attempt to locate SSA records for the Veteran.  VA has the duty to request information and pertinent records from other Federal agencies when on notice that such information exists.  See Tetro v. Gober, 14 Vet. App. 110 (2000).  The possibility that SSA records could contain evidence relevant to the Veteran's claims cannot be foreclosed absent a review of those records.  As such, an attempt to obtain these records must be undertaken.  

Accordingly, the case is REMANDED for the following action:

1.  Contact SSA and request all records related to the Veteran's award of disability benefits - BE SURE ANY RECORDS RECEIVED ARE NOT FOR VETERAN'S SON, WHICH ARE ALREADY OF RECORD.  These should include any decision made by an Administrative Law Judge and any medical records relied upon by SSA in making its decision.  Any records obtained should be associated with the claims folder.  Any negative reply must be included in the claims folder.

2.  Ensure VCAA compliance and afford the Veteran the opportunity to submit additional evidence documenting the effect his service-connected disabilities has on his occupational and daily activities of living.  

3.  Obtain all VA treatment records since July 2011 pertaining to the Veteran's cervical spine, thoracolumbar spine and left knee disorder and associate with the electronic claims folder.  Any negative reply must be included in the claims folder.

4.  After all treatment records have been associated with the record, schedule the Veteran for a new VA examination with an appropriate, qualified clinician to determine the current severity of his service-connected cervical spine, thoracolumbar spine and left knee disorders.  The examiner must note that the complete electronic claims folder - to include the treatment records received in April 2016 - has been reviewed.  The examiner should also elicit from the Veteran his history of service and post-service injuries and note that, in addition to the medical evidence, his lay history has been considered in the examination findings.  

(a)  For the cervical and thoracolumbar spine: The examiner must specifically assess the severity of the Veteran's cervical and thoracolumbar muscle spasms disabilities, including the current ranges of motion, along with any objective evidence of pain.  If motion is specifically limited by pain due to the service-connected disorder, the examiner must specify at what degree such pain is noted to begin for all ranges of motion tested.  The extent of any incoordination, weakened movement and excess fatigability on use must be described.  To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use must be assessed in terms of additional degrees of limitation of motion.  The examiner must also specify if ankylosis is present.  

(b)  For the left knee:  The examiner must specifically assess the severity of the Veteran's arthralgia, left knee, including documenting the range of motion in both active motion, passive motion, weight-bearing, and nonweight-bearing, for both the LEFT AND RIGHT KNEES, along with ANY OBJECTIVE EVIDENCE OF PAIN, and the necessary findings to evaluate functional loss during flare-ups.  If motion is specifically limited by pain due to the service-connected disorder, the examiner must specify at what degree such pain is noted to begin for all ranges of motion tested.  The extent of any incoordination, weakened movement and excess fatigability on use must be described.  To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use must be assessed in terms of additional degrees of limitation of motion.  The examiner must also specify if ankylosis is present.  

IF FOR SOME REASON THE EXAMINER IS UNABLE TO CONDUCT THE REQUIRED TESTING OR CONCLUDES THAT THE REQUIRED TESTING IS NOT NECESSARY IN THIS CASE, HE OR SHE SHOULD CLEARLY EXPLAIN WHY THAT IS SO.

A complete rationale for all opinions expressed must be included in the examination report.

6.  Obtain an opinion from an appropriate, qualified VA examiner to determine the functional effect of all of the Veteran's service-connected disabilities on his ability to obtain or maintain employment.  

7.  The issues on appeal should be readjudicated.  If any benefit on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and afforded the opportunity to respond thereto.  The case should then be returned to the Board, if in order, for further appellate process.

The appellant 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).

This claim 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. TENNER
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) (2015).



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