Citation Nr: 1324060 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-40 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date earlier than June 28, 2009, for the grant of a separate 10 percent rating for radiculopathy of the left lower extremity, secondary to spondylolisthesis of L5-S1, with degenerative disc disease. 2. Entitlement to a separate rating for radiculopathy of the right lower extremity, secondary to spondylolisthesis of L5-S1, with degenerative disc disease. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The appellant is a Veteran that served on active duty from November 1970 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for a lower back disability, with degenerative disc disease, and assigned a 20 percent evaluation as of November 23, 2004. The Veteran appealed from the initial assigned disability rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). This case was before the Board in November 2011, at which time the Board denied higher evaluations for the low back disability, initially rated at 20 percent from November 23, 2004 to October 17, 2006, and at 40 percent as of October 18, 2006. The Board also granted a separate 10 percent rating for radiculopathy of the left lower extremity, secondary to spondylolisthesis of L5-S1, with degenerative disc disease. The Board remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). In a November 2012 Order from the United States Court of Appeals for Veterans Claims (Court), that adopted a November 2012 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the November Board decision. However, only to the extent that it provided an effective date of June 28, 2009, for the grant of a separate 10 percent rating for radiculopathy of the left lower extremity. As well, the Court also raised the issue of entitlement to a separate rating for radiculopathy of the right lower extremity. In order to comply with the dictates of the Court, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the JMPR, the Court found that the Board failed to adequately address whether the Veteran is entitled to a separate rating for radiculopathy of the right lower extremity. The Court pointed to clinical documentation in the claims file which is suggestive of neuropathy affecting the right lower extremity. Nevertheless, the Board finds the current record is inadequate and remands for a current VA neurological examination. Secondly, the Court also addressed the question of whether the Veteran is entitled to an effective date earlier than June 28, 2009, for the grant of a separate 10 percent rating for radiculopathy of the left lower extremity, secondary to spondylolisthesis of L5-S1, with degenerative disc disease. The Court pointed out that the June 28, 2009 report (which provided the basis of the Board's grant) was based on a June 18, 2009 VA X-ray study. This record is not on file and must be obtained prior to appellate review. It appears that the AMC has not yet completed the development on the TDIU claim. All appropriate action must be taken on remand. Accordingly, the case is REMANDED for the following action: 1. Effectuate the Board's November 2011 directives regarding TDIU. 2. Give the Veteran an opportunity to identify any additional healthcare provider who has treated him for his service-connected lumbar spine disability to include any VA records from March 2009 onward (e.g., June 18, 2009 VA X-ray report). After securing any necessary authorization from him, obtain all identified treatment records not already in the claims file. He also must be appropriately notified if unable to obtain any identified records. 38 C.F.R. § 3.159(e). 3. Upon receipt of all additional records, schedule a VA neurological examination to assess the severity of any neurological impairment (secondary to his service connected low back disability) to include both lower extremities (e.g., decreased sensation from radiculopathy or sciatic neuropathy). In considering the degree of impairment involving the affected nerve(s) of the lower extremities, the examiner should assess this severity according to whether there is complete versus incomplete paralysis of the affected nerve(s) and whether any symptoms present result in mild, moderate, moderately severe, or severe impairment. The examiner should also determine and comment on the initial onset of neurological dysfunction involving both lower extremities. All diagnostic testing and evaluation needed to make this determination should be performed, and all clinical findings reported in detail. The examiner must review the claims file for the pertinent medical and other history, including a complete copy of this remand. The Veteran is hereby advised that failure to report for this scheduled VA examination(s), without good cause, may have detrimental consequences on these pending claims. 38 C.F.R. § 3.655. 4. If the claims are not granted to the Veteran's satisfaction, send him another supplemental statement of the case (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of his claims. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). _________________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).