Citation Nr: 1414870 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 08-17 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Allan T. Fenley, Attorney at Law ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1970 and from December 1972 to February 1974. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board remanded the claims in February 2010 and August 2011 for additional development. Subsequently, jurisdiction of the case was transferred to the RO in St. Petersburg, Florida. The appeal is REMANDED to the RO. VA will notify the Veteran if further action on his part is required. REMAND The Board sincerely regrets the additional delay caused by this Remand. However, this action is necessary to ensure that all due process is met. Accordingly, this case is REMANDED for the following actions: 1. Obtain any outstanding treatment records for the Veteran from the Tampa VA Medical Center and Daytona VA Outpatient Clinic dated since March 2012. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected lumbar spine DDD with radiculopathy of the lower extremities. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's electronic folder) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. In accordance with the latest worksheet for rating the spine, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of the lumbar spine DDD with radiculopathy of the lower extremities. The examiner is requested to: a) State the total duration of any incapacitating episodes over the past 12 months due to the Veteran's service-connected lumbar spine DDD. An incapacitating episode is defined as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. b) If possible, identify the symptoms solely attributable to the Veteran's service-connected lumbar radiculopathy of the lower extremities as distinguished from his alcohol-induced neuropathy. State whether the symptoms result in mild, moderate, moderately-severe, or severe incomplete paralysis of the affected nerve, or complete paralysis of the affected nerve. If the symptoms cannot be differentiated, the examiner should so state in the report, and explain why with a complete rationale. The examiner must provide a complete rationale for all opinions and conclusions reached, supported by specific references to the pertinent evidence, including the Veteran's lay assertions. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide a detailed explanation as to why such an opinion cannot be provided. 3. After completing the requested action, and any additional notification and/or development deemed warranted by the record, readjudicate the increased rating claims in light of all pertinent evidence and legal authority. If entitlement to a TDIU remains unavailable on a schedular basis following adjudication of the increased rating claims, then refer the case to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to assignment of a TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). The rating board should include a full statement of all factors having a bearing on the issue. 4. Then readjudicate the claim for a TDIU on an extraschedular basis. If any claim remains denied, provide the Veteran and his attorney with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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 remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Sonnet Gorham Acting 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) (2013).