Citation Nr: 1500620 Decision Date: 01/07/15 Archive Date: 01/13/15 DOCKET NO. 14-03 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating greater than 10 percent prior to December 4, 2013, and in excess of 20 percent from December 4, 2013 forward, for thoracic scoliosis with degenerative disc disease, T1 through T6 (back condition). 2. Entitlement to an initial rating greater than 10 percent for radiculopathy of the right lower extremity. 3. Entitlement to an initial rating greater than 10 percent for radiculopathy of the left lower extremity. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Elias, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2012, the RO awarded service connection for thoracic scoliosis with degenerative disc disease, T1 through T6, and assigned an initial 10 percent rating, effective from April 22, 2010. In January 2013, the RO denied entitlement to a TDIU and awarded service connection for radiculopathy of the right and left lower extremities, rated as 10 percent disabling, respectively, effective from June 4, 2012. Thereafter, a December 2013 rating decision increased the Veteran's back condition evaluation from 10 percent to 20 percent, effective December 4, 2013, the date of the most recent VA examination report. The Board also notes that the Veteran indicated in his December 2013 substantive appeal (VA Form 9) that he wished to testify at a hearing before the Board. However, this request was withdrawn in January 2014 when the Veteran submitted another VA Form 9 that was identical to the December 2013 VA Form 9, except that it stated the Veteran did not want a hearing before the Board. Accordingly, the Board may proceed with appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets the delay, the claims on appeal must be remanded for further development to make an informed decision, and to afford them every due consideration. New VA examinations are necessary in order for the Board to make an informed decision. In this regard, the December 2013 VA peripheral nerves conditions disability benefits questionnaire (DBQ) states that the Veteran has radiculopathy without any further findings or explanations. This DBQ is not sufficient to help the Board make an informed decision as the probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, new VA examinations are necessary to determine the severity of the Veteran's back condition and bilateral lower extremity radiculopathy. Any recent VA treatment records should also be obtained. In addition, the Veteran is being treated for his back condition and bilateral lower extremity radiculopathy by a private physician, Dr. A.R. As the Veteran's private treatment records may be relevant to his claims, he should be provided another opportunity to submit, or request VA to obtain on his behalf, any relevant private treatment records pertaining to his back condition and his bilateral lower extremity radiculopathy. Finally, as entitlement to TDIU is dependent in part on the development and resolution of the initial ratings assigned to the Veteran's back condition and bilateral lower extremity radiculopathy, the Board must defer consideration of this issue at this time. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (holding that two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Make arrangements to obtain the Veteran's complete treatment records from Dr. A.R. 2. Make arrangements to obtain the Veteran's complete VA treatment records, dated since December 2013. 3. After the above records have been obtained, schedule the Veteran for VA spine and peripheral nerves examinations to assess the current severity of his low back disorder and bilateral lower extremity radiculopathy. Appropriate DBQs should be filled out for this purpose, if possible. The examiner should also provide an opinion as to the functional impairment caused by the Veteran's service-connected thoracic scoliosis with degenerative disc disease, T1 through T6, and radiculopathy of the right and left lower extremities, particularly with respect to his ability to obtain and maintain substantially gainful employment. 4. Then, review the claims file and ensure that all requested development actions have been completed in full. If the VA examination report(s) does not adequately respond to the above remand directives, it must be returned to the examiner for corrective action. 5. Finally, after completing any other development that may be warranted, readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 2014). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).