Citation Nr: 1753665	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  11-27 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to a disability rating of 10 percent for radiculopathy of the lower right extremity.

2.  Entitlement to a disability rating of 10 percent for radiculopathy of the lower left extremity.

3.  Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

David R. Seaton, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1976 to November 1990.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 

These issues were previously before the Board, and, in January 2016, the Board remanded the issue of entitlement to TDIU for further development and denied the issues of entitlement to increased disability ratings for the radiculopathy of the bilateral lower extremities.  In May 2017 pursuant to a Joint Motion for Partial Remand (JMR), the Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the matter back to the Board.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

Radiculopathy

As previously noted, the issue of entitlement to a disability rating in excess of 10 percent for radiculopathy of the bilateral lower extremities were previously denied by the Board, and, pursuant to a JMR, the Court vacated the Board's decision and remanded the matter back to the Board.  Previously, the Board denied the Veteran's increased rating claim, because the Board found that the medical evidence of record when taken in its totality suggested that the Veteran's radiculopathy produced mild incomplete paralysis throughout the period on appeal.  In making this decision, the Board noted that some medical evidence suggested that the Veteran's neurological symptoms were more severe, but that on the whole the Veteran's symptoms more closely approximately the criteria for mild symptoms than any other criteria.  The Court found that the Board should have considered whether the Veteran was eligible to a staged disability rating with periods where the Veteran's symptoms were more severe than others.  As such, this matter must be remanded in order to provide the Veteran with a VA examination in order to make this determination.

TDIU

At issue is whether the Veteran is entitled to TDIU.  The Board finds that this issue is inextricably intertwined with the above issues and must be remanded as well.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Arrange to provide the Veteran with a VA examination in order to answer the following questions:

1a.  Is the current severity of the Veteran's radiculopathy of the bilateral lower extremities best characterized as mild incomplete paralysis, moderate incomplete paralysis, severe incomplete paralysis, or complete paralysis?  Why?

1b.  Has the Veteran's radiculopathy continued to manifest a constant level of paralysis since the beginning of the period on appeal in September 2009, or alternatively, have there been periods were the level of paralysis had fluctuated from one level of paralysis to another level of paralysis from September 2009 to present?  Why or why not?

2.  Then, readjudicate the claim on appeal.  If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order.

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 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).



_________________________________________________
MATTHEW W. BLACKWELDER
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) (2017).