Citation Nr: 1731126 Decision Date: 08/03/17 Archive Date: 08/11/17 DOCKET NO. 10-44 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative changes. 2. Entitlement to a higher rating for radiculopathy of the right lower extremity, secondary to service-connected lumbosacral strain with degenerative changes, rated as 10 percent disabling prior to June 28, 2012, and 20 percent from that date. 3. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity, secondary to service-connected lumbosacral strain with degenerative changes. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E, Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from January 1975 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. In December 2016, the case was remanded to provide the Veteran with a hearing before a Veterans Law Judge. In March 2017, the Veteran testified before the undersigned in a Video Conference Hearing; a copy of the transcript is associated with the record. The Board notes that in May 2017, the Veteran provided a private medical opinion regarding entitlement to a total rating based on individual unemployment (TDIU) due to his service connected low back disability and depression, as secondary to low back disability. However, the issues before the Board are: entitlement to a higher rating in excess of 40 percent for a lumbosacral strain with degenerative changes; entitlement to a higher rating for radiculopathy of the right lower extremity, secondary to service-connected lumbosacral strain with degenerative changes, rated at 10 percent from December 12, 2010, and 20 percent from June 28, 2012, and; entitlement to a higher rating in excess of 10 percent for radiculopathy of the left lower extremity, secondary to service-connected lumbosacral strain with degenerative changes, from July 12, 2012. The Board considers TDIU as a component of a claim for higher rating when the Veteran presents evidence of unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This aspect of the claim in appellate status is further discussed in the remand. But a claim for a TDIU rating due to all of the Veteran's service-connected disabilities, including those not before the Board on appeal, is a separate claim which the Veteran has not raised and has not been adjudicated by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 19.9(b) (2016). Should the Veteran wish to file a claim for TDIU based on his combined disabilities, or his service-connected depression, he is advised to file the VA claim form specific to TDIU. (VA Form 21-8940). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board is aware that this claim has been remanded on a prior occasion and regrets that further delay will result from an additional remand. However, given the current record on appeal, and the nature of this claim, the Board finds that it is necessary to remand this claim once again. In the March 2017 hearing, the Veteran testified that he was unemployable due to this low back disability. Notably, in an August 2012 VA physical rehabilitation note the Veteran stated that prolonged walking or sitting for longer than 45 minutes made his pain worse. In an August 2015 VA primary care note, the Veteran was noted as having a fairly active in his daily life and working for the San Francisco VA. In May 2017, the Veteran provided a private medical opinion that concluded that either his low back disability and/or his depression (which is an issue not before the Board) would have prevented him from maintaining his positon at VA had it not been for accommodations. That opinion stated that the Veteran's back pain prevented him from standing or sitting for longer than 15 minutes. He was unable to walk further than 30 steps, and needed daily bed rest. Further, his medications prevented him from "purely cerebral" work, as he was unable to focus, concentrate, memorize, and/or provide work products. In a statement from this month, the Veteran stated that he retired from position as an MRI technician on July 31, 2013 due to his service-connected disabilities. He has not worked since then, and claims that he is a potential liability given his physical and psychological disabilities. As the issue of entitlement to TDIU has been raised by the record, and has not been addressed by the AOJ, a remand is necessary. Further, the Board notes that the February 2009 VA spine examination and the April 2013 VA peripheral nerves conditions examination are the most recent VA examinations regarding the Veteran's low back disability. In the March 2017 hearing, the Veteran's representative noted that the Veteran experienced significant issues with his back and the May 2017 private medical statement by Dr. C. N. Bash suggested a greater level of impairment than noted on the most recent VA examination reports. Accordingly another examination with a medical opinion is warranted to assess the current level of severity of the Veteran's service-connected back issue. Accordingly, the case is REMANDED for the following action: 1. Please obtain all outstanding VA and non-VA treatment records, including VA treatment records developed since November 2015. 2. Please provide the Veteran and his representative with a VCAA notice letter notifying them of the information and evidence necessary to substantiate a claim for TDIU. Please request information relating to the Veteran's education, professional certificates, or professional licenses that he has obtained. The Veteran and his representative should have an opportunity to respond. Then complete any further development deemed indicated by the responses received. 3. After the action in paragraphs 1 and 2 is complete, please schedule the Veteran for an examination to determine the current severity of his low back disability and radiculopathy of the right and left lower extremities. The examiner is requested to provide findings regarding all related symptoms and describe the severity and functional impact of these symptoms. In particular, the examiner is requested to respond to the following questions, with consideration of the May 2017 statement from Dr. C. N. Bash in the record: a. Please describe in detail whether the Veteran has an impairment of his gait due to his service connected back and related lower extremity radiculopathy; and b. Please identify approximately how long the Veteran is able to (i) stand and (ii) sit; and c. Please identify how much weight the Veteran can safely lift; and d. Please identify what distance the Veteran can safely walk; and e. Please indicate whether the Veteran's service connected back and related lower extremity radiculopathy requires bed rest, and, if so, how frequently? f. Please indicate the impact of the pain medication the Veteran takes for his service connected back and related lower extremity radiculopathy on his ability perform cerebral work; and g. Please describe in detail any additional functional limitation due to the Veteran's service connected back and related lower extremity radiculopathy. The claims file should be made available to and reviewed by the examiner. All indicated tests and studies should be undertaken. The examiner must explain the rationale for all opinions rendered, citing to supporting factual data and/or medical literature, as appropriate. 4. Finally, please readjudicate the claims, to include consideration of TDIU based solely on the service connected lumbar spine disability and related lower extremity radiculopathy. If any of the claims remain denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ M. C. GRAHAM 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) (2016).