Citation Nr: 1317130 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 07-39 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation greater than 10 percent for left lower extremity radiculopathy. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active duty for training (ACDUTRA) from November 1982 to March 1983 and active military service from November 1990 to April 1991 and from January to October 2003. He performed ACDUTRA and inactive duty training at various other times. This case arises to the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that continued a separate 10 percent rating for left lower extremity radiculopathy. The Veteran appealed that decision to the Board. The Board denied the claim in April 2009. The Veteran appealed the Board's April 2009 decision to the United States Court of Appeals for Veterans Claims (hereinafter: the Court). In April 2010, the Court remanded the case back to the Board, pursuant to a joint motion for remand. In September 2010, the Board remanded the case for development. The Court has determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran has claimed that he has not worked since 2003 and cannot work because of the extreme pain of left lower extremity radiculopathy. Social Security Administration records reflect that he is disabled from employment due to his back disability. Although the Veteran has not applied for TDIU, the record raises the issue. Therefore, the Board has added a TDIU claim to page 1. Further development is needed to properly adjudicate the TDIU claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Higher Rating for Left Lower Extremity Radiculopathy The claims files and Virtual VA files reflect that the most recent supplemental statement of the case (SSOC) was issued in March 2012. The evidence available in Virtual VA reflects that VA re-examined the Veteran's left lower extremity in November 2012. The examination report contains evidence pertinent to the correct rating for left lower extremity radiculopathy. This new evidence has not been considered by the RO, or by the AMC, in an SSOC. The Veteran has not waived his right to initial RO consideration of this evidence. Thus, a remand will be necessary for this procedural safeguard. See 38 C.F.R. § 19.31 (b) (1); also see Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). TDIU The Veteran seeks entitlement to TDIU. TDIU may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). For the earliest portion of the appeal period, the combined service-connected schedular disability rating was 30 percent. Effective September 27, 2010, an 80 percent combined schedular rating has been assigned. Effective November 15, 2012, a 90 percent combined schedular rating has been assigned. Should the left lower extremity warrant greater ratings for any portion of the appeal period, these ratings could require further adjustments. Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should review the additional evidence added to Virtual VA, especially the November 2012 VA compensation examination report, and then re-adjudicate the claim of entitlement to a schedular rating greater than 10 percent for left lower extremity radiculopathy. 2. The AMC should develop the TDIU claim as necessary. This includes offering an appropriate examination to determine whether it is at least as likely as not (50 percent or greater possibility) that all service-connected disabilities preclude securing and following a substantially gainful occupation. Following development and adjudication of the TDIU claim, if the benefit is not granted, the AMC should submit it to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b) and § 3.321 (b), as appropriate. 3. Following the above, the AMC should review all the relevant evidence and re-adjudicate the claims. If the desired benefits are not granted, an appropriate SSOC should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DENNIS CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).