Citation Nr: 1760304
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-08 220 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado

THE ISSUES

1. Entitlement to a rating higher than 10 percent prior to July 17, 2017, and higher than 20 percent as of July 17, 2017, for lumbar spine degenerative joint disease.

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

REPRESENTATION

Veteran represented by: Colorado Division of Veterans Affairs

ATTORNEY FOR THE BOARD

S. Mussey, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1967 to June 1970.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which continued a 10 percent rating for lumbar spine degenerative joint disease.

A July 2017 rating decision granted a 20 percent rating for lumbar spine degenerative joint disease, effective July 17, 2017. However, because a higher rating is available for the lumbar spine degenerative joint disease and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran’s claim for a TDIU rating was denied in a September 2017 rating decision.

The Veteran requested a Travel Board hearing before a Veterans Law Judge. See March 2014 VA Form 9. The Veteran later withdrew that request. See March 2015 Correspondence from Veteran. Accordingly, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. 20.704(e) (2017).

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

REMAND

Although the Board sincerely regrets the further delay, a remand is required in this appeal to pursue additional development to ensure that there is a complete record upon which to decide the Veteran’s claims, so that he is afforded every possible consideration.

Records must be added to the claims file as they may be pertinent to the issues on appeal. The Veteran’s outstanding VA treatment records dated since July 2017 must be added to the claims file. In an August 2014 statement, the Veteran advised that his physical therapy physician was concerned about his back pain causing a loss of feeling in his legs, which in turn would cause falls. Physical therapy treatment records are not contained in the claims file. The Veteran should be provided an opportunity to identify any relevant treatment records and to furnish VA with the necessary authorization to request treatment records on his behalf or to submit these records himself, including physical therapy treatment records.

Regarding the claim for higher ratings for the Veteran’s lumbar spine degenerative joint disease, a new VA examination must be provided to comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017).

The United States Court of Appeals for Veterans Claims (the Court), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint, or an explanation as to why such testing is not warranted or not possible. See Correia, 28 Vet. App. at 158. The July 2017 VA and November 2012 examination reports do not specify that passive and non-weightbearing range of motion testing was performed, or whether such testing was considered not warranted or not possible.

Additionally, VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Id. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. In this case, the July 2017 and November 2012 examination reports do not provide the necessary information regarding flare-ups, as specified above. Specifically, concerning the July 2017 VA examination, although the examination was not performed during a flare-up, it is not apparent why the examiner could not estimate additional functional loss based on the Veteran’s statements describing the flare-ups, or why the available information in the file was not sufficient to permit such an estimate. It is not noted whether the November 2012 VA examination was conducted during a flare-up.

The issue of entitlement to a TDIU rating is dependent on the assignment of ratings to the claim for increased ratings for lumbar spine degenerative joint disease. See 38 C.F.R. § 4.16(a) (2017); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, after the RO has determined whether increased ratings are warranted, and after it has completed any additional development deemed necessary, the issue of entitlement to a TDIU should be readjudicated in light of the additional evidence; and if the claim is not granted, the matter should be returned to the Board.

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file the Veteran’s VA treatment records, dated since July 2017.

2. Contact the Veteran and obtain the provider name, address, and approximate date of treatment for any additional treatment records that he would like VA to obtain, including any physical therapy records.

Obtain all records adequately identified by the Veteran, and for which the Veteran has signed the appropriate releases, and associate them with the claims folder.

If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented.

3. After the above has been completed, arrange for a new VA examination to assess the current severity of the Veteran’s lumbar spine degenerative joint disease. The Veteran’s entire claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation.

Range of motion testing in accordance with Correia:
In the examination report, the examiner must include all of the following:

(a) Active range of motion testing results.
(b) Passive range of motion testing results.
(c) Weightbearing range of motion testing results.
(d) Non-weightbearing range of motion testing results.

If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified.

Flare-ups (Sharp): The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors.

If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate.

The examiner is advised of the following:

* The November 2012 VA examination notes in the Medical History section that the Veteran’s low back pain has become more frequent, intense, and persistent. Less activity is needed to trigger the Veteran’s lower back pain. The Veteran advised that he experienced flare-ups during increased activity, sitting for long periods of time, and after “sleeping wrong.”

* In April 2013 the Veteran advised of daily back pain, discomfort, and muscle spasms.

* In August 2014 the Veteran provided that his back pain was causing lost feeling in his legs. The Veteran reported that his physical therapy physician was concerned this would cause him to fall. The Veteran reported falling two times in the past three months. The Veteran also advised of constant back pain even with medication.

* In the July 2017 VA examination, the Veteran advised that he experienced flare-ups during activities such as light gardening and that sitting in the car driving makes his back hurt more and he is then in pain for it the next 24 hours.

4. Thereafter, determine whether a VA examination is necessary concerning the claim for a TDIU rating, and, if so, schedule the Veteran for an appropriate VA examination and opinion.

In conjunction with the examination, the claims file must be made available to and reviewed by the examiner. The examination report should indicate that this has been accomplished.

The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on his employment.

After a full examination and review of the claims file, the examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disabilities (i.e., lumbar spine degenerative joint disease and a duodenal ulcer) and opine as to the impact of the service-connected disabilities on his ability to secure and follow a substantially gainful occupation.

The examiner must provide a comprehensive report including complete explanation for all opinions and conclusions reached, taking into account, and citing where appropriate, the evidence in the record, including the Veteran’s reports of his history, his current symptomatology, and all associated functional and occupational limitations found.

5. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented.

6. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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. §§ 5109B, 7112 (2012).

_________________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).

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