Citation Nr: 18154138
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 15-23 081A
DATE:	November 29, 2018
REMANDED
1. Entitlement to a disability rating in excess of 10 percent for thoracolumbar strain with chronic subscapular myositis prior to February 20, 2014, in excess of 40 percent between February 20, 2014 and December 8, 2014, and in excess of 20 percent thereafter, is remanded
2. Entitlement to a disability rating in excess of 70 percent for major depression is remanded.
3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1985 to May 1989 and from May 1989 to March 2005.
In an August 2014 rating decision, the Regional Office (RO) granted an increased 70 percent disability rating for the Veteran’s major depression, effective February 20, 2014. An increased 40 percent rating for the Veteran’s thoracolumbar strain with chronic subscapular myositis was also granted, effective February 20, 2014. In January 2015, the RO reduced the disability rating of the Veteran’s thoracolumbar strain with chronic subscapular myositis to 20 percent, effective December 8, 2014. As this was not a full grant of the benefits sought on appeal, and the Veteran did not indicate that he agreed with the increased ratings, his claim has remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).
1. Entitlement to a disability rating in excess of 10 percent for thoracolumbar strain with chronic subscapular myositis prior to February 20, 2014, in excess of 40 percent between February 20, 2014 and December 8, 2014, and in excess of 20 percent thereafter, is remanded.
In an October 2018 statement, the Veteran requested assistance to obtain medical records related to his claims, including the claim for an increased rating for his lower back disability on appeal. The Veteran provided a list of medical providers, addresses, and dates of treatment along with his statement. He also provided VA 21-4142, Authorization for Release of Information, however, only provided a blanket statement of “For provider information see letter dated October 10, 2018” in section III, medical provider information, of the form. An attempt had been made to obtain the records, however, the request was rejected due to “incomplete PHP information,” as noted in an October 2018 medical records request reject note. The omission of potentially relevant records necessitates that the claim must be returned for additional development, to include requesting the proper authorization from the Veteran to obtain such records referenced in October 2018, and again attempt to obtain the records.
The Veteran contends that his lower back disability is worse than reflected in the disability ratings currently assigned. The Veteran was last afforded a VA examination in December 2014 in order to establish the severity of his lower back related symptoms. In a February 2015 statement, the Veteran’s wife stated that there had been noticeable changes in his condition and that after the last examination, the Veteran spent almost two weeks without getting out of bed due to physical demands during the examination.
In an June 2016 statement, the Veteran’s representative stated that where a veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluation the state of the condition, the VA must provide a new examination. The Board finds that a remand is necessary to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his thoracolumbar strain with chronic subscapular myositis.
2. Entitlement to a disability rating in excess of 70 percent for major depression is remanded.
The Veteran contends that his major depression is worse than the disability rating currently assigned. The Veteran was last afforded a VA examination in December 2014 in order to establish the severity of his major depression related symptoms. In a February 2015 statement, the Veteran’s wife asserted that the Veteran’s psychiatric symptoms continued to worsen. In an June 2016 statement, the Veteran’s representative stated that where a veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluation the state of the condition, the VA must provide a new examination. 
Moreover, in May 2017, the Veteran submitted a private vocational assessment, in which the vocational expert opined that it was at least as likely as not that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service connected major depressive disorder, thoracolumbar strain with chronic subscapular myositis, right epicondylitis major, left epicondylitis minor, left ear tinnitus, gastroesophageal reflux disease (GERD), status-post septoplasty, hypertension and external hemorrhoids.
The Board finds that in light of the new opinion from the vocational expert and assertions that the Veteran’s major depression had worsened, a remand is necessary to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his major depression.
3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.
A determination with respect to the increased rating claims for 1) thoracolumbar strain with chronic subscapular myositis and 2) major depression may have an impact upon consideration of the issue of entitlement to a TDIU rating on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran’s TDIU claim is deferred pending adjudication of the Veteran’s increased rating claims.
The matters are REMANDED for the following action:
1. Ask the Veteran to identify any outstanding VA or private treatment records that he wishes VA to obtain, to include private medical records for treatment of his lower back referenced in an October 2018 statement and list. Please instruct the Veteran to properly complete an authorization for each medical provider indicated. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified, and associate them with the claims file.
Any negative responses should be in writing and should be associated with the claims file.
2. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected thoracolumbar strain with chronic subscapular myositis.
The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. The examiner should identify and describe all current symptomatology. The examiner should provide a detailed review of the Veteran’s current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by thoracolumbar strain with chronic subscapular myositis.
3. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected major depression.
The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. The examiner should identify and describe all current symptomatology. The examiner should provide a detailed review of the Veteran’s current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by major depression.
4. Thereafter, based on the entirety of the evidence, readjudicate the claim of entitlement to a TDIU rating.
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Cheng, Associate 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

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