Citation Nr: 0000304 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 94-32 365 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to an effective date earlier than December 20, 1996, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU). 2. Entitlement to an increased rating for chronic lumbosacral strain with sciatica and degenerative arthritis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from July 1969 to January 1972 and from June 1973 to September 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions by the RO in Huntington, West Virginia. FINDINGS OF FACT 1. The veteran was last discharged from active service in September 1976. 2. The veteran first filed a claim for TDIU on November 19, 1989. 3. The veteran has been unable to secure or follow a substantially gainful occupation as a result of service- connected disability since July 7, 1989. CONCLUSION OF LAW The proper effective date to be assigned for the award of TDIU is November 19, 1989. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.400, 4.3, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION TDIU may be awarded, where a veteran's schedular rating is less than total, if evidence is received to show that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16 (1999). Normally, consideration is given to such an award only if the veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16(a) (1999). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. 38 C.F.R. § 4.16(b) (1999). Rather, "[i]t is the established policy of [VA] that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. The general rule with regard to the effective date to be assigned for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 1991). See 38 C.F.R. § 3.400 (1999) (to the same effect). An exception to that rule applies when the application for benefits is received within one year from the date of the veteran's discharge or release from active service. In that situation, the effective date of the award is made retroactive to "the day following the date of discharge or release . . . ." 38 U.S.C.A. § 5110(b)(1) (West 1991). See 38 C.F.R. § 3.400(b)(2) (1999) (to the same effect). In the present case, the record shows that the veteran was last discharged from active service in September 1976, and first filed a claim for TDIU on November 19, 1989. Consequently, because he did not file a claim for TDIU within one year of discharge, the effective date for the award of TDIU can be no earlier than November 19, 1989. Id. Thus, the operative question is whether and when, on or subsequent to November 19, 1989, do the facts demonstrate that he was entitled to TDIU. In this regard, the Board finds that the evidence supports the conclusion that the veteran has been unable to secure or follow a substantially gainful occupation as a result of service-connected disability since July 7, 1989. The record shows that he last worked on that date, and that two days later, on July 9, 1989, he was admitted to a VA hospital for treatment of service-connected post-traumatic stress disorder (PTSD), degenerative changes of the lumbar spine, and tinea cruris and pedis. In the resulting hospital summary, the VA treating physician opined that the veteran was "disabled on a psychiatric basis." The Social Security Administration (SSA) has found the veteran to be disabled from July 7, 1989, due to low back pathology and PTSD, and while the SSA determination is not binding on VA, the SSA's conclusion is corroborated by reports dated in August and December 1989, prepared by a private psychiatrist and a Vet Center therapist, which reflect that the veteran was at that time unable to work as a result of service-connected disability. Moreover, it appears that this inability to work persisted in subsequent years, inasmuch as it was again noted by a psychiatrist in September 1993 that the veteran was unable to engage in gainful employment as a result of PTSD and low back difficulties. Consequently, under the circumstances, it is the Board's conclusion that the evidence supports a finding that the veteran has been continuously disabled from work since July 7, 1989, due to service-connected disorders. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 C.F.R. § 4.3 (1999). Because the veteran submitted his claim for TDIU more than one year after the date of his last discharge from service, the effective date of the award cannot predate the date of receipt of his claim. 38 U.S.C.A. § 5110(a), (b)(1) (West 1991); 38 C.F.R. § 3.400(b)(2) (1999). Inasmuch as the evidence supports the conclusion that he was unable to obtain or retain employment due to service-connected disability as of July 7, 1989, and his claim for TDIU was thereafter received on November 19, 1989, the Board finds that the appropriate effective date to be assigned for the award of TDIU is November 19, 1989. To this extent, the appeal is granted. ORDER An effective date of November 19, 1989, is granted for the award of TDIU, subject to the law and regulations governing the award of monetary benefits. REMAND I. Low Back The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has stressed that, in evaluating disabilities of the joints, VA has a duty to determine whether the joint in question exhibits weakened movement, excess fatigability, or incoordination, and whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). The Court has indicated that these determinations should be made by an examiner and, if feasible, should be portrayed by the examiner in terms of additional loss in range of motion due to these factors (i.e., in addition to any actual loss in range of motion noted upon clinical evaluation). In the present case, the record shows that the veteran's service-connected low back disability was not evaluated in the manner contemplated by the Court when he was examined by VA in December 1996 and April 1997. Although the reports of those examinations contain information relating to the clinically observed range of motion in his low back, they do not contain a discussion relating to the level of additional impairment, if any, occasioned by factors such as weakness, excess fatigability, and incoordination, or by pain during flare-ups or with repeated use. A remand is therefore required. 38 C.F.R. §§ 3.327, 4.2, 19.9 (1999). A remand is also required so that additional records can be obtained from the SSA. Although the record contains a copy of a July 1990 decision showing that the veteran has been granted SSA benefits due, in part, to disability associated with his low back, it does not contain a complete copy of the medical records relied upon by SSA in rendering that decision. On remand, an attempt should be made to obtain those records so that they can be considered in the context of the veteran's claim for an increased rating. II. Hips In August 1985, the RO denied the veteran's claim of service connection for arthritis of the hips. Thereafter, in January 1986, the veteran's representative notified the RO in writing that the veteran disagreed with that determination. However, no statement of the case (SOC) addressing the issue was thereafter prepared. In situations such as this, the Court has held that the Board should remand the matter to the RO for the issuance of a SOC. See, e.g., Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). On remand, the RO should re-examine the claim of service connection for arthritis of the hips to determine whether additional development or review is warranted. If no preliminary action is required, or when it is completed, the RO should prepare a SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought on appeal, or the NOD is withdrawn. 38 C.F.R. § 19.26 (1999). If, and only if, a timely substantive appeal is received should this matter thereafter be certified to the Board for appellate review. 38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (1999). For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for his low back that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). The RO should obtain the records from SSA, and make an effort to ensure that all relevant records of VA treatment have been obtained for review. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional evidence received should be associated with the claims folder. 2. After the above development has been completed, the RO should schedule the veteran for an orthopedic and neurologic examination for purposes of assessing the current severity of his service- connected low back disorder. The examiner(s) should review the claims folder and a copy of this remand before examining the veteran. All indicated testing should be conducted, and current X-rays of the low back should be obtained. The examiner(s) should indicate whether the veteran has muscle spasms on extreme forward bending; whether there is any listing of the spine, a positive Goldthwait's sign, or evidence of osteoarthritic changes or narrowing of joint spaces; and whether there is any abnormal mobility on forced motion. The examiner(s) should also indicate whether the veteran has intervertebral disc syndrome of the low back and, if so, should indicate the frequency with which the veteran experiences attacks attributable to that condition. The examiner(s) should also note whether the condition is manifested by persistent symptoms compatible with sciatic neuropathy with characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to the site of the diseased disc(s). The examiner(s) should then indicate whether the intervertebral disc syndrome affecting the low back is best described as mild, moderate, severe, or pronounced. Finally, the examiner(s) should conduct range of motion studies on the low back. The examiner(s) should first record the range of motion observed on clinical evaluation, in terms of degrees. If there is clinical evidence of pain on motion, the examiner(s) should indicate the degree of motion at which such pain begins. Then, after reviewing the veteran's complaints and medical history, the examiner(s) should render an opinion, based upon best medical judgment, as to the extent to which the veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically) due to these factors. Specifically, the examiner(s) should indicate whether the overall disability picture, in terms of limited motion, and including weakness, excess fatigability, incoordination, and/or pain due to repeated use or flare-ups, is best equated with (1) slight, (2) moderate, or (3) severe limitation of motion in the lumbar spine. 3. The RO should re-examine the veteran's claim of service connection for arthritis of the hips to determine whether additional development or review is warranted. If no preliminary action is required, or when it is completed, the RO should prepare a SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought on appeal, or the NOD is withdrawn. The claim should be certified to the Board for appellate review if, and only if, a timely substantive appeal is received. 4. The RO should take adjudicatory action on the veteran's claim of entitlement to an increased rating for a service-connected low back disorder. In so doing, the RO should consider and apply the principles set out at 38 C.F.R. §§ 4.40 and 4.45, and in the Court's decision in DeLuca. If the benefit sought is denied, a SSOC should be issued. 38 C.F.R. § 19.31 (1999). After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals