Citation Nr: 1422962 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 10-32 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for lumbar spine degenerative joint disease, currently evaluated as 20 percent disabling prior to December 28, 2009 and as 40 percent disabling from that date. 2. Entitlement to an increased rating for left lower extremity sciatica, currently evaluated as 10 percent disabling prior to March 16, 2009 and as 20 percent disabling from that date. 3. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling prior to April 22, 2009 and as 70 percent disabling from that date. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to May 1, 2010. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from March 1990 to March 1994 and from December 2003 to March 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2008, September 2009, and May 2013 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2008, the RO denied a claim for increased rating for PTSD in excess of 30 percent and increased the Veteran's lumbar spine degenerative joint disease rating from 10 percent to 20 percent effective from the April 4, 2008 date of claim. In May 2010, the RO increased the rating for the Veteran's lumbar spine degenerative joint disease from 20 to 40 percent, effective from December 28, 2009, and the rating for his PTSD from 30 to 70 percent, effective from April 22, 2009. A 100 percent temporary total rating was assigned by the RO for the Veteran's PTSD from March 4, 2010 through April 2010 in an April 2010 RO rating decision. The Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge in March 2014, at which time he indicated that he was represented himself. He had previously been represented by a private attorney. The Veteran filed a notice of disagreement in January 2014 with the ROs May 2013 decision to deny a TDIU prior to May 1, 2010. A statement of the case has not been issued. Normally, this would merely require the Board to remand this issue to the RO to issue a statement of the case in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). However, the Board finds that this issue is part of the Veteran's claims for increased ratings for the disabilities at issue as he asserted in March 2009 that a TDIU was warranted in light of them. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, remand for a supplemental statement of the case considering it, if it remains denied after RO consideration, is required. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A November 2010 Social Security Administration (SSA) decision which is of record indicates that the Veteran was awarded SSA disability insurance benefits effective from May 5, 2009 based in part on spine and psychiatric disorders. As the SSA decision may include records that are relevant to the current claim, those records should be obtained. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed.Cir.2010) Likewise, the Veteran testified in March 2014 that he receives ongoing VA treatment for the disabilities at issue. The most recent VA medical records considered in the December 2013 supplemental statement of the case are dated through March 2013. Accordingly, all VA medical records of treatment which the Veteran has received since March 2013 should be secured for the record. VA medical records are constructively of record and must be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Since the matter of entitlement to a TDIU is part of the Veteran's claims for increased ratings for the disabilities at issue, and he has disagreed with the determination that they did not render him unemployable prior to May 1, 2010, the Board is remanding this matter to the RO for a retrospective VA medical opinion on the matter of whether his service-connected disabilities rendered him unemployable prior to May 1, 2010. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Obtain from the SSA 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 all VA medical records of treatment which the Veteran has received since March 2013. 3. After the development sought above is completed, schedule the Veteran for appropriate VA examinations to ascertain the current severity of the lumbar spine, left lower extremity sciatica and PTSD disabilities. The claims folder and all pertinent records should be made available to the examiners for review. The examiners should identify all manifestations of disabilities. After completion of the above, the claims folder should be referred to an appropriate medical professional to offer an opinion as to whether the Veteran's service-connected disabilities rendered him unemployable prior to May 1, 2010. The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities, (lumbar spine, left lower extremity sciatica, PTSD and right shoulder muscle strain disabilities) either singly or taken together, rendered him unable to secure or follow a substantially gainful occupation prior to May 1, 2010. Detailed rationale is requested for the opinion provided. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2013). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2013).