Citation Nr: 18132297
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 96-03 025
DATE:	September 6, 2018
REMANDED
The claim seeking entitlement to a disability rating higher than 20 percent, on both a schedular and extraschedular basis, for a lower back disability is remanded.
The claim seeking entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1980 to April 1981, and the instant appeal stems from the Veteran’s disagreement with a September 1995 rating decision that granted a 20 percent schedular rating, but no higher, for the Veteran’s service-connected back disability, which has historically been referred to as mechanical low back pain with a residual muscle strain.  
The lengthy procedural history of this case has been set forth in detail in prior Board decisions, but in short, in May 1997, the Board denied the Veteran’s lower back disability increased rating claim on a schedular basis, and remanded the claim for consideration for an increased rating on an extraschedular basis.  In February 1999, the Board denied an increased rating on an extraschedular basis, and the Veteran appealed this February 1999 decision to the United States Court of Appeals for Veterans Claims (Court).  In May 2001, the Court issued a Memorandum Decision vacating the February 1999 decision, and upon return of the claim to the Board, the Board remanded the case in May 2003 and March 2005 before once again denying an increased rating on an extraschedular basis in October 2005.  The Veteran again appealed this decision to the Court, and in September 2008, the parties to the appeal entered into a Joint Motion for Remand (Joint Motion), in which they agreed that a vacatur of the October 2005 Board decision was warranted, based on the Board’s failure to consider the Veteran’s entitlement to an increased rating on both a schedular and extraschedular basis, given the passage of time since the Board’s consideration of the claim on a schedular basis in May 1997, and given that during the appeal period, the Veteran had reasserted an increase in his low back symptoms.  The Court issued an Order in October 2008 granting this Joint Motion.  
Upon return of the increased rating claim (now to be considered on both a schedular and extraschedular basis) to the Board, the Board remanded the claim for further development in May 2009, March 2015, and October 2016, and in the March 2015 remand, the Board determined that a claim for a TDIU had been implicitly raised as part and parcel of the increased rating claim on appeal, and assumed jurisdiction thereof per Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  
In August 2017, the Board requested a medical opinion from a subject matter expert (an orthopedic spinal surgeon) employed by the Veterans Health Administration (VHA) [hereinafter referred to as the VHA expert], and the related opinion was provided in August 2017.  The Veteran was provided with a copy of this medical opinion in December 2017.
1. The claim seeking entitlement to a disability rating higher than 20 percent, on both a schedular and extraschedular basis, is remanded.
In the aforementioned August 2017 medical opinion request, the Board asked the VHA expert to opine as to whether, during this lengthy appeal period, the Veteran’s service-connected low back disability has been manifested by intervertebral disc syndrome (IVDS).  This clarification was required, as determining the presence of IVDS is a necessary component of determining a disability rating based on the various rating criteria in effect throughout the appeal period and as there were conflicting medical opinions on this matter.  The VHA expert opined that he could discern the presence of IVDS as of 2008, but could not state whether IVDS was present prior to 2008 without resorting to speculation, given the lack of certain radiological evidence, such as magnetic resonance imaging (MRI) reports, prior to 2008.  However, as the Board’s review of the record does indeed reveal multiple pre-2008 MRI studies, this opinion is predicated on an inaccurate premise, and a new medical opinion considering all relevant radiological studies is required on remand.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
Further, given that the Veteran’s increased rating claim is ongoing, his recent, outstanding VA treatment records should also be obtained, and if these records reflect a discernable increase in the Veteran’s low back disability since his (most recent) August 2016 VA examination, a new VA examination should be provided, as well.  
2. The claim seeking entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
As the Veteran’s claim seeking a TDIU is intertwined with his low back disability increased rating claim, adjudication of this claim must be deferred pending the development and readjudication of his increased rating claim.  
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records created since August 2016.
2. If and only if these treatment records reflect a discernable increase in the Veteran’s low back disability since the Veteran’s most recent VA examination, performed in August 2016, schedule the Veteran to undergo a new VA spinal examination to determine the current severity of his low back disability.  
3. Request that a clinician of appropriate expertise, preferably a neurosurgeon or orthopedic spinal surgeon, if available, review the Veteran’s claims file and state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability was manifested by IVDS at any point during the appeal period from 1994 to 2008 (as IVDS is established as of 2008 per another VA medical opinion).  
When rendering this opinion, please have the clinician consider:
(a.) The March 1999 lumbar spine MRI report; 
(b.) The July 2000 lumbar spine MRI report;
(c.) The July 2002 lumbar spine MRI report;
(d.) The September 2004 lumbar spine MRI report; and
(e.) The April 2006 lumbar spine MRI report.
If the reviewing clinician determines that IVDS was present in the time period between 1994 and 2008, the clinician should opine as to whether IVDS was present throughout the entire period, and if not, please approximate the date of onset, citing a rationale for this conclusion.  
If the examiner is unable to identify a date of onset without resorting to speculation, he or she should specifically explain why, and indicate whether there is any additional evidence (records, testing, etc.) that could be obtained that would allow for an opinion to be rendered.

 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Nicole L. Northcutt, Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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