Citation Nr: 1801967 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 09-05 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine (hereinafter "low back condition.") 2. Entitlement to ratings in excess of 10 percent for chondromalacia of each knee. 3. Entitlement to initial ratings in excess of 10 percent for sciatic radiculopathy of each lower extremity prior to February 25, 2015 and ratings in excess of 20 percent thereafter. 4. Entitlement to initial compensable ratings for femoral radiculopathy of each lower extremity prior to February 25, 2015 and ratings in excess of 20 percent thereafter. 5. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Witness ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to November 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from the August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). During the course of the appeal, the February 2009 RO rating decision granted service connection for sciatic radiculopathy of each lower extremity as 10 percent disabling. The May 2016 RO rating decision increased the sciatic radiculopathies ratings to 20 percent disabling, effective February 25, 2015, and granted service connection for femoral radiculopathy of each lower extremity. As the radiculopathies are considered neurological manifestations of his low back condition on appeal, they are considered part and parcel. The Board has recharacterized the issues as reflected on the title page of this decision to better reflect the Veteran's contentions. In November 2011, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. In September 2014, he testified at a Travel Board hearing before the undersigned VLJ. Transcripts of both hearings are of record. The matters were remanded for further development in March 2012, February 2013, November 2014 and January 2017 and have returned to the Board for consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Since the issuance of the April 2017 supplemental statement of the case, additional pertinent evidence, including VA treatment records relevant to the claim and September 2017 VA knee and back contract examinations have been associated with the claims file without a waiver of AOJ review. Thus, the matter must be remanded for initial review and issuance of a SSOC by the AOJ. See 38 C.F.R. § § 19.31(a), 19.37(a). Since April 2015, the record reflects that the Veteran has not participated in any substantially gainful employment and is eligible for TDIU consideration under 38 C.F.R. § 4.16. However, an updated VA examination and opinion is required to clarify whether the Veteran's service connected disabilities alone are so severe as to prevent him from obtaining and maintaining substantially gainful employment. Though the record identifies some occupational and functional impairment due to his service-connected knee, back and radiculopathies in VA examinations from February 2015, March 2017 and September 2017, recent medical and lay evidence identifies or asserts further functional impairment through both service connected and nonservice connected conditions. See e.g., November 2017 medical opinion from treating VA physician and July 2017 part-time employer letter. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA or non VA treatment records relevant to the claims above, including records from the following VAMCs: Palo-Alto (beyond October 2017); Martinez (beyond August 2017) and San Francisco (beyond October 2016). 2. Schedule the Veteran for an appropriate VA examination(s) to obtain an opinion regarding the functional and occupational impact of the Veteran's service-connected disabilities. All necessary tests and studies should be conducted. Based on a review of the medical and lay evidence of record, the examiner must comment on the individual and collective functional impairment of each of the Veteran's service-connected disabilities (low back, radiculopathies of the lower extremities, bilateral knee, hemorrhoids and infectious hepatitis) on his ability to perform sedentary or manual type employment. In providing the above opinion, the examiner must consider the Veteran's education and work history but not his age or any nonservice connected disabilities. A full and complete rationale for any opinion expressed is required. 3. Finally, conduct any further development indicated based on the development above and then readjudicate the appeal considering all evidence received since the April 2017 SSOC. If the claims remain denied, provide the Veteran and his representative with a SSOC and allow an appropriate time for response. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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).