Veteranclaims’s Blog

October 3, 2012

Single Judge Application, Pain Causes Limitation of Motion; 38 C.F.R. 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011)

Excerpts from decision below:
Pain on motion must be taken into account when rating a disability based
on limitation of motion
, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet.App. 202, 205-06 (1995). However, to receive disability compensation for painful motion, that pain must result in functional loss – i.e., limitation in the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,] or endurance.” 38 C.F.R. § 4.40 (2012); see Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011). In other words, “although pain may cause functional loss, pain itself does not constitute functional loss” that is compensable for VA benefit purposes. Mitchell, 25 Vet.App. at 37.
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“However, the Board’s accounting of the evidence is imprecise. That is, although it is true that none of the examiners found flexion to be less than 40 degrees, both the December 2007 and November 2009 examiners indicated that the appellant experienced pain throughout the range of motion. R. at 53, 267-68. Neither examiner made an initial finding as to the degree of range-of-motion loss due to pain on use as required by
DeLuca. Thus, although both examiners noted no additional limitation after repetitive use, it is unclear from the reports whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain.
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When faced with a similarly deficient examination report in Mitchell,
supra, the Court vacated the Board’s decision and remanded the matter for a further medical examination. 25 Vet.App. at 44 (holding that because the examiner failed “to address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacks sufficient detail necessary for a disability rating, and should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary”); see also
Bowling, supra. The same result is warranted here. The record demonstrates
that in a December 2006 examination the appellant complained that he had difficulty standing, lifting, and bending, and that he experienced flareups that lasted between four and five days, and in a December 2007 examination he complained that he suffered flareups lasting up to one day. R. at 268, 409.
Additionally, the appellant described daily constant pain in November 2009.
R. at 52. Although the December 2006 examiner differentiated between the appellant’s range of motion with and without pain, indicating that flexion was limited 15 degrees as a result of pain, the December 2007 and November 2009 examiners did not provide this level of detail, i.e., they did not indicate at what point during the appellant’s range of motion he experienced limitation of motion or functional loss attributable to pain on motion. Because the examiners did not adequately address additional range-of-motion loss as a result of pain or functional loss during flareups, the Board should have returned the reports as inadequate or explained why such action was not necessary. See Mitchell and Bowling, both supra.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2084
JOHN H. TURNER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN, Judge: The pro se appellant, John H. Turner, appeals a March 8,
2011, Board
of Veterans’ Appeals (Board) decision that denied entitlement to a
disability rating in excess of 20%
for residuals of low back strain with degenerative changes and
degenerative disc disease of the
lumbar spine. Record of Proceedings (R.) at 3-16. This appeal is timely,
and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a). Both
parties filed briefs. Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the following reasons, the Court will modify that
part of the Board’s decision
that referred, rather than remanded, the issue of entitlement to a total
disability rating based on
individual unemployability (TDIU). Additionally, because the Board relied
on an inadequate
medical examination to deny a disability rating in excess of 20%, the
Court will vacate the Board’s
decision and remand the matter for further proceedings consistent with
this decision.
I. BACKGROUND
The appellant served honorably on active duty in the U.S. Air Force from
May 1971 to
August 1991. R. at 4, 1088. In May 1992, the Columbia, South Carolina, VA
regional office (RO)
determined that the appellant’s low back strain with subjective complaints
of pain was related to

service, but assigned a noncompensable rating, effective September 1,
1991. R. at 530-34. Over the
years, the RO increased to 20% the appellant’s disability rating. See R.
at 518-27 (March 1993
Statement of the Case granting a 10% disability rating, effective
September 1, 1991), 423-31
(February 2002 rating decision granting a 20% disability rating, effective
January 17, 2002).
In October 2006, the appellant asserted that his back condition had gotten
worse and
requested that VA re-evaluate his 20% disability rating and schedule him
for a compensation and
pension examination. R. at 421-22. In a December 2006 letter, the RO
informed the appellant of
the information and evidence necessary to support his claim for increased
compensation. R. at 414-
20. Under a section entitled, “What do we still need from you?” the letter
stated:
[Y]ou may submit evidence showing that your service-connected residuals of
low
back strain, with degenerative changes and degenerative disc disease of
the lumbar
spine has increased in severity. This evidence may be a statement from
your doctor
containing the physical and clinical findings, the results of any
laboratory tests or x-
rays, and that dates of examinations and tests.
R. at 414. The letter further informed the appellant that VA would make ”
reasonable efforts” to
obtain “[r]elevant records not held byanyFederal agency,” and that “[t]his
mayinclude records from
State or localgovernments, privatedoctorsandhospitals, or current or
formeremployers.” R. at 417.
The letter also advised the appellant that if the evidence was not in his
possession, he must provide
VA with sufficient information for VA to request it from the person or
agencypossessing it, and that
if VA was unable to obtain the information, he would be notified; however,
the letter ultimately
explained that it was the appellant’s responsibility to make sure VA
received all requested records
that were not in the possession of a Federal department or agency. Id.
Also in December 2006, the appellant underwent a VA spine examination. R.
at 408-10.
The examiner noted that the appellant complained of “lower lumbar midline
pain[,] which
sometimes radiate[d] into the left groin and anterior thigh.” R. at 408.
The appellant denied
numbness and “any acute incapacitating episodes in the last 12 months in
which a physician
prescribed bedrest.” Id. The appellant indicated that his “low back
affects his usual occupation [as
an auto mechanic] in that it limits his lifting and standing” and that “[p]
erhaps 4 – 5 days per month
he will have some increase in his low back pain which might be
characterized as a flare-up [and
d]uring that time, he wears a lumbar support as an assistive device.” R.
at 409. The examiner noted
2

that lumbosacral spine and sacroiliac x-rays yielded normal results,
diagnosed “[l]umbar strain” and
“[d]egenerative joint disease of the left hip,” and reported the following
physical findings:
The lumbar spine flexes to 75 degrees without pain and to 90 degrees with
pain.
After repetitive use, lumbar flexion is limited to 75 degrees because of
pain.
Extension is to 30 degrees with end-of-range pain, right lateral flexion
to 25
degrees with end-of-range pain, left lateral flexion to 30 degrees with
end-of-
range pain, and rotation to 45 degrees in both directions with end-of-
range pain.
After repetitive use, only flexion is further reduced as described above.
There is
no spasm on palpating the back. He does have some tenderness in the mid to
lower lumbar midline. Straight legraisingis negative bilaterally.
Neurologically,
motor strength and tone and light touch sensation are normal in both lower
extremities. The deep tendon reflexes are 2+ in all four extremities. His
gait is
normal.
Id.
In January 2007, the appellant submitted a “[Veterans Claims Assistance
Act (VCAA)]
Notice Response” in which he indicated that he did not have any additional
information or evidence
to submit “other than what I attached.” R. at 391. Attached to the letter
was an August 2005 private
medical record from Colonial Family Practice, in which the examiner noted
the appellant’s
complaints of ongoing low back pain. R. at 392. Later that month, the RO
continued the appellant’s
20% disability rating. R. at 381-87. The appellant filed a timely Notice
of Disagreement and later
perfected an appeal to the Board. R. at 284-85, 290-311, 380.
The appellant underwent another spine examination in December 2007. R. at
267-69.
Although he denied any incapacitating episodes of back pain within the
preceding 12 months, the
appellant reported that he stopped working in May 2007 as a result of ”
health problems” and that he
had experienced difficulty bending and lifting when he was working. R. at
268. He related that he
suffered activity-related flareups that could last up to one day,
requiring him to rest and take
medication. Id. The examiner performed a physical examination which
revealed, in part, that the
appellant “could flex his back to 40 degrees, extend to 10 degrees,
laterally flex to 10 degrees and
rotate to 5 degrees bilaterally. All motion appeared painful but not
additionally limited following
repetitive use on this examination.” R. at 267-68. The examiner diagnosed “[
d]egenerative disk
disease of the lumbar spine with clinical evidence of radiculopathy in the
left lower extremity.” R.
at 268-69.
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In January 2008, an examiner of the appellant’s peripheral nerves noted
that the appellant
complained of low back pain with radiation into his left leg, but found
that his complaint did “not
conform to the distribution of any particular peripheral nerve or nerve
root.” R. at 265. After
conducting a physical examination, the examiner’s impression was that the
appellant “has chronic
lowbackpainsecondarytohis age-
relateddegenerativeosteoarthritisofthelumbarspine,”but found
“no evidence of a radiculopathy or neuropathy present in th[e] examination
.” R. at 266.
InApril2008,theRO issuedaSupplementalStatementoftheCase(SSOC),
whichcontinued
the appellant’s 20% disability rating, and in June 2008, the RO sent the
appellant another letter
informing him what the evidence must show to establish entitlement to an
increased evaluation. R.
at 215-21, 223-28. After receiving additional VA treatment records dated
April to May 2008 (R. at
184-85), the RO issued another SSOC in August 2008 denying a higher rating
because although the
medical records revealed complaints of low back pain, they provided no
objective clinical findings
to establish that the appellant’s condition warranted a higher evaluation (
R. 205-08).
In May 2009, the appellant testified at a Board hearing that he had
received treatment only
from VA for his back. R. at 130. In support of his claim for increased
compensation, the appellant
stated that his condition worsened “[t]o the point that [he] can[not]
maintain a job.” R. at 131. He
added that it had been over a year since he was able to hold a steady job
sufficient to take care of his
bills. R. at 133.
The Board subsequently issued a decision in July 2009 (R. at 120-27)
remanding the
appellant’s claim for further development, including “an appropriate VA
examination to determine
the nature, extent, frequency[,] and severity of any orthopedic and
neurologic impairment related to
the [v]eteran’s back disability” (R. at 125). In addition, the Board
instructed that the examiner (1)
“identify all back pathology found to be present,” (2) “state whether the
back disability has been
productive of incapacitating episodes,” (3) “discuss the nature and
severity of any right or left-sided
radiculopathyor neuropathy of the lower extremities found to be present,”
and (4) “state whether the
left hip arthritis is related to the service-connected disability.” R. at
125-26.
Later that month, the Appeals Management Center (AMC) sent the appellant a
letter
informing him of the evidence he could submit to show that his disability
increased in severity. R.
at 66-80. The letter also requested that he “complete, sign, and return a
VA Form 21-4142,
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Authorization and Consent to Release Information to the Department of
Veterans Affairs, for each
non-VA provider and medical care facility that treated you for your
condition.” R. at 67.
The appellant underwent a neural disorder examination in October 2009. R.
at 51. During
the examination, the appellant reported low back pain going to the left
hip, pain on the left knee, and
some tingling of both feet. Id. Physical examination revealed that he
walked with a limp, favoring
the left lower extremity, but that the limp was “more in connection with
his left hip replacement.”
Id. Deep tendon reflexes were 2+ in both knees and ankles and he had a
normal sensory
examination. Id. The examiner’s impression was lumbosacral spondylosis
with no signs of
radiculopathy. Id.
The appellant also underwent a third spine examination in November2009. R.
at 52-55. The
appellant indicated that his hip pain improved significantlyafter his
recent total hip replacement, but
continued to complain of daily constant low back pain with radiation to
the bilateral lower
extremities. R. at 52. However, he also indicated that there had not been
anyincapacitating episodes
over the last 12 months in which a physician prescribed bed rest. Id.
Regarding functional
impairment, the appellant reported that he was retired “mainly because of
his back condition,” but
denied flareups or interference with activities of daily living. R. at 53.
The examiner noted that a
physical examination of the appellant’s lumbar spine revealed that “he had
flexion to 55 degrees,
extension to 10 degrees, lateral flexion to 20 degrees bilaterally[,] and
rotation to 30 degrees
bilaterally, all of which were with pain throughout and his range of
motion was not additionally
limited in the form of repetitive use on this examination.”
“[d]egenerative disc disease of the lumbar spine, severe.” Id.
In March 2010, the RO issued an SSOC, which continued the appellant’s 20%
disability
rating. R. at 42-50. The Board issued the decision here on appeal on March
8, 2011. R. at 3-16.
Initially, the Board noted that the appellant reported during his November
2009 examination that he
was unable to work mainly because of his back and that he was service-
connected for multiple
disabilities, including his hip. R. at 4. Noting that the issue of TDIU
had not been adjudicated, the
Board “referred it to the RO for appropriate action.” Id. Regarding the
appellant’s entitlement to a
disability rating in excess of 20% for residuals of low back strain with
degenerative changes and
Id.
The examiner diagnosed
5

degenerative disc disease of the lumbar spine, the Board found that the
criteria for a higher disability
rating had not been met. This appeal followed.
II. ANALYSIS
The pro se appellant (1) asserts that the Board failed to obtain his ”
civilian doctor records,”
and (2) seeks a 100% disability rating, asserting that his “back pain will
not allow [him] to work a
normal job.” Informal Brief (Br.) at 1-2. The Secretaryresponds that (1)
the Board plausibly denied
entitlement to a disability rating in excess of 20%, (2) VA satisfied its
duty to assist, and (3) the
Court lacks jurisdiction over the issue of TDIU. Secretary’s Br. at 15-24.
A. Law
The assignment of a disability rating is a factual finding that the Court
reviews under the
“clearly erroneous” standard of review. Johnston v. Brown, 10 Vet.App. 80,
84 (1997). A finding
of material fact is clearlyerroneous when the Court, after reviewing the
entire evidence, “is left with
the definite and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990).
In rendering a decision, the Board must provide a statement of the reasons
or bases for its
determination, adequate to enable an appellant to understand the precise
basis for the Board’s
decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(
d)(1); see Allday v. Brown,
7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with
this requirement, the
Board must analyze the credibility and probative value of the evidence,
account for the evidence it
finds persuasive or unpersuasive, and provide the reasons for its
rejection of any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table).
Under the General Rating Formula for Diseases and Injuries of the Spine, a
20% disability
rating is warranted when the following limitations are found:
Forward flexion of the thoracolumbar spine greater than 30 degrees but not
greater
than 60 degrees; or, forward flexion of the cervical spine greater than 15
degrees but
not greater than 30 degrees; or, the combined range of motion of the
thoracolumbar
spine not greater than 120 degrees; or, the combined range of motion of
the cervical
spine not greater than 170 degrees; or, muscle spasm or guarding severe
enough to
6

result in an abnormal gait or abnormal spinal contour such as scoliosis,
reversed
lordosis, or abnormal kyphosis.
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2012). A disabilityrating
of 30% is warranted when
“[f]orward flexion of the cervical spine [is limited to] 15 degrees or
less; or, favorable ankylosis of
the entire cervical spine [is present].” Id. A 40% evaluation is warranted
where forward flexion of
the thoracolumbar spine is 30 degrees or less; or there is favorable
ankylosis of the entire
thoracolumbar spine. Id.
Pain on motion must be taken into account when rating a disability based
on limitation of
motion, even where there is compensable loss as a result of limitation of
motion. DeLuca v. Brown,
8 Vet.App. 202, 205-06 (1995). However, to receive disability compensation
for painful motion,
that pain must result in functional loss – i.e., limitation in the
ability “to perform the normal working
movements of the body with normal excursion, strength, speed, coordination
[,] or endurance.”
38 C.F.R. § 4.40 (2012); see Previous DocumentMitchellNext Hit v. Shinseki, 25 Vet.App. 32, 38 (
2011). In other words,
“although pain may cause functional loss, pain itself does not constitute
functional loss” that is
compensable for VA benefit purposes. Previous HitMitchellNext Hit, 25 Vet.App. at 37.
B. VA’s Duty To Assist
1. Duty To Obtain Relevant Records
The Secretary has a duty to assist claimants in developing their claims.
38 U.S.C. § 5103A.
The duty to assist includes the duty to make “reasonable efforts to obtain
relevant records,” as long
as the claimant “adequately identifies” those records to the Secretary and
authorizes the Secretary
to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19
Vet.App. 96, 102 (2005).
The Board’s determination that VA has satisfied the duty to assist is
reviewed under the “clearly
erroneous” standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (
2007).
In the decision here on appeal, the Board noted that the appellant’s
service treatment records
and VA medical records had been associated with the claims file, and that
VA provided numerous
medical examinations, which provided the Board sufficient information to
make an informed
decision. R. at 16. Accordingly, the Board determined no further
assistance was required to fulfill
VA’s duty to assist. Id.
7

The appellant asserts that VA failed to obtain his “civilian doctor
records.” Informal Br. at
1. However, he fails to provide any identifying information or otherwise
assert that he authorized
the Secretary to obtain the records on his behalf. As a result, the Court
is unable to review or assess
the merits of the appellant’s argument. See Coker v. Nicholson, 19 Vet.App.
439, 442 (2006) (“The
Court requires that an appellant plead with some particularitythe
allegation of error so that the Court
is able to review and assess the validity of the appellant’s arguments.”),
rev’d on other grounds sub
nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (per curiam order);
see also Locklear v.
Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not
entertain underdeveloped
arguments); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (
holding that the appellant bears
the burden of demonstrating error on appeal). Nonetheless, the Court
observes that the record
demonstratesthat VA repeatedlyinformed the appellantthat he should
provideVAwith information
regarding treatment for his back condition and that VA would make
reasonable efforts to obtain the
records if the appellant requested VA to do so. R. at 67, 220, 414, 417.
In addition, although the
appellant had submitted an August 2005 “new patient visit” form from a
private physician, the
appellant subsequently testified at the May 2009 Board hearing that he
received treatment for his
back only from VA. R. at 130, 392. Based on the foregoing, and in the
absence of an adequately
developed argument, the Court cannot conclude that the Secretary failed to
fulfill his duty to assist
by failing to obtain records that were adequately identified and which he
was authorized to obtain.
See Loving, supra.
2. Duty To Provide an Adequate Medical Examination
Pursuant to 38 U.S.C. § 5103A(d), the Secretary’s duty to assist also
includes “providing a
medical examination or obtaining a medical opinion when such an
examination or opinion is
necessary to make a decision on the claim.” “[O]nce the Secretary
undertakes the effort to provide
an examination, . . . he must provide an adequate one.” Barr v. Nicholson,
21 Vet.App. 303, 311
(2007). An examination is adequate “where it is based upon consideration
of the veteran’s prior
medical history and examinations and also describes the disability, if any,
in sufficient detail so that
the Board’s ‘”evaluation of the claimed disability will be a fully
informed one.”‘” See Stefl v.
Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.
App. 405, 407 (1994)
(quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). Under 38 C.F.R.
§ 4.40, “[i]t is
8

essential that the examination on which ratings arebased
adequatelyportraythe anatomical damage,
and the functional loss.” The Court has held that in order to adequately
portray the functional loss
of musculoskeletal disabilities, the examination must not only “express an
opinion on whether pain
couldsignificantlylimit functionalabilityduringflare-upsorwhenthe[joint]
isusedrepeatedlyover
a period of time,” but should also, if feasible, express any resultant
loss in range of motion due to
pain and weakness during flareups or with repetitive use in terms of the
degree of additional range
of motion loss. DeLuca, 8 Vet.App. at 206.
If an examination report contains insufficient detail, “it is incumbent
upon the rating board
to return the report as inadequate for evaluation purposes.” 38 C.F.R. §
4.2 (2012); see also Bowling
v. Principi, 15 Vet.App. 1, 12 (2001); DeLuca, 8 Vet.App. at 206 (finding
examination inadequate
where the examiner did not consider “functional loss on use or due to
flare-ups”). “Whether a
medical opinion is adequate is a finding of fact, which this Court reviews
under the ‘clearly
erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104 (2008).
Here, the record demonstrates that the appellant was provided several
spine examinations
during the pendency of his claim for a higher disability rating. R. at 52-
55, 267-69, 408-10. In its
decision, the Board discussed the applicable DCs and summarized the
medical evidence of record,
noting symptoms such as pain on motion and limitation of flexion and
extension. R. at 5-12. The
Board found that a disability rating in excess of 20% based upon
limitation of motion was not
warranted because “flexion has never been shown to be less than 40 degrees,
even taking into
account pain on motion” and “although the [appellant] report[ed] that he
experiences flare-ups, the
examiners found that there was no additional limitation of motion on
repetitive use, to include due
to pain.” R. at 12-13. However, the Board’s accounting of the evidence is
imprecise. That is,
although it is true that none of the examiners found flexion to be less
than 40 degrees, both the
December 2007 and November 2009 examiners indicated that the appellant
experienced pain
throughout the range of motion. R. at 53, 267-68. Neither examiner made an
initial finding as to
the degree of range-of-motion loss due to pain on use as required by
DeLuca. Thus, although both
examiners noted no additional limitation after repetitive use, it is
unclear from the reports whether
and at what point during the range of motion the appellant experienced
anylimitation of motion that
was specifically attributable to pain.
9

When faced with a similarly deficient examination report in Previous HitMitchellNext Document,
supra, the Court
vacated the Board’s decision and remanded the matter for a further medical
examination.
25 Vet.App. at 44 (holding that because the examiner failed “to address
any range-of-motion loss
specifically due to pain and any functional loss during flare-ups, the
examination lacks sufficient
detail necessary for a disability rating, and should have been returned
for the required detail to be
provided, or the Board should have explained why such action was not
necessary”); see also
Bowling, supra. The same result is warranted here. The record demonstrates
that in a December
2006 examination the appellant complained that he had difficultystanding,
lifting, and bending, and
that he experienced flareups that lasted between four and five days, and
in a December 2007
examination he complained that he suffered flareups lasting up to one day.
R. at 268, 409.
Additionally, the appellant described dailyconstant pain in November 2009.
R. at 52. Although the
December 2006 examiner differentiated between the appellant’s range of
motion with and without
pain, indicating that flexion was limited 15 degrees as a result of pain,
the December 2007 and
November2009 examiners did not provide this level of detail, i.e., theydid
not indicate at what point
during the appellant’s range of motion he experienced limitation of motion
or functional loss
attributable to pain on motion. Because the examiners did not adequately
address additional range-
of-motion loss as a result of pain or functional loss during flareups, the
Board should have returned
thereports asinadequate or explained whysuch action was not necessary.
SeeMitchell andBowling,
both supra.
Inasmuch as the Board relied on medical examinations that were inadequate
for rating
purposes, the Board’s finding that the duty to assist was satisfied is
clearlyerroneous. Therefore, the
Court will vacate the Board’s decision and remand the matter for further
proceedings consistent with
this decision. Given that the appellant’s claim for increased compensation
has been pending since
2006, on remand the Board is reminded to consider the applicability of
staged ratings. See Hart v.
Mansfield, 21 Vet.App. 505, 510 (2007) (holding that staged ratings are
appropriate in
rating-increase claims “when the factual findings show distinct time
periods where the
service-connected disability exhibits symptoms that would warrant
different ratings”).
In pursuing the matter on remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
10

and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
“[a] remand is meant to entail a critical examination of the justification
for the decision.” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious
treatment” of claims
remanded by the Court).
C. TDIU
To the extent that the appellant asserts that his back pain prevented him
from working a
“normal job” and seeks “an increase of 100%,” the Secretaryargues that the
Board referred the issue
of TDIU to the RO and the Court “presumably” lacks jurisdiction over the
matter. Secretary’s Br.
at 22-24. The Court disagrees.
The Court recently held in Young v. Shinseki, that the Court “has
jurisdiction over an appeal
of a decision of the Board that denies a part of a claim for benefits and
decides to refer, rather than
remand, for adjudication another part (or condition) or theory in support
of that same claim, and our
jurisdiction extends not only to the denied part of the claim but also to
the referral decision.”
25 Vet.App. 201, 202 (2012). With regard to claims for increased
compensation, the Court clarified
in Rice v. Shinseki, that “a request for TDIU, whether expressly raised by
the veteran or reasonably
raised by the record, is not a separate claim for benefits, but rather
involves an attempt to obtain an
appropriate rating for a disability or disabilities, . . . [including] as
part of a claim for increased
compensation.” 22 Vet.App. 447, 453-54 (2009). Thus, “[o]nce a veteran
submits evidence of a
medical disability and makes a claim for the highest rating possible, and
additionally submits
evidence of unemployability, . . . VA must consider TDIU.” Roberson v.
Shinseki, 251 F.3d 1378,
1384 (Fed. Cir. 2001). Accordingly, because the Court has jurisdiction
over the Board’s decision
denying a part of the appellant’s claim for benefits – a higher
schedular disability rating – the Court
has jurisdiction to address the propriety of referring, rather than
remanding, to the RO another part
of the same claim – for TDIU. See Young and Rice, both supra.
Here the appellant filed a claim for increased compensation, and as
acknowledged by the
Board, the issue of TDIU was raised by the record. See R. at 4 (stating
that the appellant reported
11

during his November 2009 examination “that he was unable to work mainly
due to his back”).
Because the issue of TDIU is not a separate claim for benefits when it is
raised as part of a veteran’s
claim for increased compensation, the Court concludes that the Board erred
when it referred, rather
than remanded, the issue of TDIU to the RO stating that it “still ha[d]
not been adjudicated.” Id.; see
Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006) (en banc) (“Once the
Board has jurisdiction over
a claim, . . . it has the authority to address all issues related to that
claim, even those not previously
decided by the RO.” (emphasis added)). Therefore, the Court will modify
the Board’s decision to
reflect remand, rather than referral, of the issue of TDIU. See Young,
supra; see also Manlincon v.
West, 12 Vet.App. 238, 240-41 (1999) (exercising jurisdiction and vacating
Board decision because
the Board erred by referring rather than remanding a claim for dependency
and indemnity
compensation that was in “appellate status”).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, that part of the Board’s March 8, 2011, decision that referred the
issue of entitlement to TDIU
is MODIFIED to reflect remand. The Board’s decision denying entitlement to
a disability rating in
excess of 20% is VACATED and the matter is REMANDED for furtherproceedings
consistent with
this decision.
DATED: September 13, 2012
Copies to:
John H. Turner
VA General Counsel (027)
12

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