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. ============== "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. 9 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." ================== ---------------------------------------------------- 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. 3 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, 4 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