07-20 464
07-20 464
| Board of Vet. App. | May 31, 2016Background
- Veteran served 1958–1977 and appealed a 10% rating assigned for degenerative disc disease of the lumbar spine effective May 1, 2006 (after a temporary convalescence rating for post-op period).
- Claim for TDIU is on appeal as part of the increased-rating claim; VA awarded service connection for diabetes mellitus, type II in Feb 2016 after the last AOJ TDIU adjudication (July 2014).
- Multiple service‑connected conditions (sinusitis, hemorrhoids, ureterolithiasis, right middle/index finger amputation, prostate cancer, bilateral hearing loss, diabetes, left lower‑extremity neuropathy) lack recent VA examinations or updated records in the file.
- Representative requested remand to obtain updated VA and private treatment records and examinations to address TDIU and increased-rating claims.
- Board found the issues intertwined and that further development (notice, VA Form 21‑8940, obtaining VA/private records, and comprehensive VA exams addressing function and employability) is necessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lumbar spine rating should be increased above 10% | Veteran contends current rating understates severity and requests updated exams/records showing greater functional loss, flare‑ups, and radiculopathy | RO previously assigned 10% after post‑op convalescent rating; current record lacks recent comprehensive exam addressing all functional loss and radiculopathy | Remanded for new VA spine examination addressing ROM, flare‑ups, radiculopathy, neurologic/bladder/bowel findings, and functional impact for rating purposes |
| Entitlement to TDIU based on service‑connected disabilities | Veteran/rep argue TDIU should be re‑adjudicated in light of newly‑awarded diabetes and lack of development (no Form 21‑8940, incomplete exams/records) | Last AOJ TDIU action was in July 2014; RO has not yet considered diabetes for TDIU and has not issued required notice or obtained work/education history | Remanded for full TDIU development: provide notice/Form 21‑8940, obtain VA/private records, obtain examinations assessing employability impact of all service‑connected conditions, then readjudicate and issue SSOC |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (recognizing TDIU as part and parcel of an increased‑rating claim)
- Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.) (VA must solicit work/education information; importance of Form 21‑8940)
- Palczewski v. Nicholson, 21 Vet. App. 174 (new exam required when evidence is stale or condition may have worsened)
- Snuffer v. Gober, 10 Vet. App. 400 (exam requirement when necessary for adjudication)
- Bolton v. Brown, 8 Vet. App. 185 (need for updated examination when veteran alleges worsening)
- Caffrey v. Brown, 6 Vet. App. 377 (exam necessity when record is insufficient)
- Henderson v. West, 12 Vet. App. 11 (intertwined claims doctrine)
- Harris v. Derwinski, 1 Vet. App. 180 (intertwined issues may be remanded together)
- Bell v. Derwinski, 2 Vet. App. 611 (VA medical records are constructively in VA possession and must be obtained when relevant)
- Kutscherousky v. West, 12 Vet. App. 369 (veteran may submit additional evidence after remand; duty to assist and development obligations)