08-04 774
08-04 774
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served on active duty 1973–1975 and 1979–1992 and is represented by Disabled American Veterans.
- Appeals originate from a May 2006 RO decision denying increased rating for lumbosacral strain and TDIU; Board previously denied increased rating in July 2015.
- In July 2016 the U.S. Court of Appeals for Veterans Claims remanded the increased-rating issue for inadequate reasons-or-bases by the Board.
- Records indicate the Veteran reported private treatment (Westwood Chiropractic Center, Cincinnati) but VA lacked complete authorizations to obtain those records.
- The Board found prior July 2016 remand actions (for TDIU development and extraschedular referral) were not completed by the RO, and additional development is required.
- The Board REMANDED both claims for VA to obtain private medical and employment records, provide a new VA back examination (addressing range of motion and incapacitating episodes), refer TDIU for extraschedular consideration before March 8, 2009, and then readjudicate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Increased rating for lumbosacral strain | Veteran contends current rating (10%) understates severity and points to private treatment and symptom worsening | RO/VA notes missing private records and incomplete development; requests additional records and a new VA exam | Remanded for VA to obtain private records, complete a new VA exam addressing rating criteria and incapacitating episodes, then readjudicate |
| Entitlement to TDIU (prior to Mar 8, 2009) | Veteran asserts service-connected disabilities rendered him unemployable | RO had not obtained outstanding employment records nor referred for extraschedular consideration as previously directed | Remanded to obtain employment records, refer to Director, Compensation Service for extraschedular consideration, and readjudicate TDIU claim |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (remand directives must be followed; claimant entitled to substantial compliance)
- D'Aries v. Peake, 22 Vet. App. 97 (2008) (only substantial, not strict, compliance with remand required)
- Parker v. Brown, 7 Vet. App. 116 (1994) (remand compliance principles)
- Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues may be inextricably intertwined requiring joint adjudication)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran may submit additional evidence/argument on remanded matters)