Citation Nr: 1802085 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-20 862A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to rating in excess of 10 percent for degenerative joint disease of L5-S1. 2. Entitlement to rating in excess of 10 percent for radiculopathy of the right leg. 3. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Cheryl King, Agent ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to April 1970, February 1982 to February 1986, and October 1988 to November 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled to present testimony before a Veteran's Law Judge (VLJ) in May 2017, August 2017, and November 2017. The record reflects that he requested postponement for the first two dates, but failed to appear at the November 2017 hearing without further explanation for the absence. Therefore, the Board considers the Veteran's request for a hearing before the Board to be withdrawn. See 38 C.F.R. § 20.704(d). In February 2013, the Veteran filed a claim for a TDIU. See 02/25/2013, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A claim for a TDIU is part of an increased disability rating claim when such claim is raised by the record; and that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. See e.g., Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the Board has jurisdiction of the TDIU claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board notes that the Veteran's most recent VA examination occurred nearly five years ago in April 2012. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In February 2013, after certification to the Board, the Veteran's agent provided a statement with additional evidence. This included and updated Disability Benefits Questionnaire (DBQ) by his chiropractor for the thoracolumbar spine and radiculopathy. The agent indicated that the Veteran's disability had worsened since his last DBQ in August 2012. Specifically, it was indicated that the Veteran had incapacitating episodes that were not taken into consideration. The Board notes that the last medical records in the file ended July 2010 and there were no incapacitating episodes. 2/27/2013 VA 21-4138 Statement in Support of Claim; 2/27/2013 VA Examination. Consequently, it appears that the Veteran's symptoms may be more severe than those reflected in the April 2012 VA examination report. As such, the Board finds that a new VA examination is warranted. 38 C.F.R. § 3.327(a) (2017). Any updated VA (and/or private) medical records should also be obtained. Additionally, the Veteran's TDIU claim is inextricably intertwined with the issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, a decision on this matter is deferred until after the required development has been completed. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's claim file all outstanding VA treatment records from July 2010 to the present. Additionally, request the Veteran authorize the release of any relevant private records or submit them to VA. 2. After associate any VA records and any submitted private records and incorporating them into the claims file, schedule the Veteran for an appropriate examination for the purpose of determining the current severity of his degenerative joint disease of the L5-S1 and right leg radiculopathy. Any special tests deemed medically advisable should be conducted. Range of motion testing should be conducted, and if possible, the examiner should report (in degrees) the point in range of motion testing where motion is limited by pain. The examiner should express the additional functional limitation in terms of the degree of additional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner is to test and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also describe and comment on how the degenerative joint disease of the L5-L1 and right leg radiculopathy disabilities affect his occupational functioning and activities. The examiner should describe the types of limitations he would experience as a result of his lumbar spine disability. The examiner is to provide a comprehensive rationale for the opinions. 3. After completion of the above actions, readjudicate the issues on appeal. If any benefit sought remains denied, then furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant 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 (2012). _________________________________________________ Paul Sorisio 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).