Citation Nr: 1805268 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-17 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine (back disability). 2. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the left lower extremity associated with the service-connected back disability. 3. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right lower extremity associated with the service-connected back disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Navy from July 1972 to May 1975. The Veteran received the Vietnam Service Medal and the Vietnam Campaign Medal, among other commendations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for the back disability, and assigned a disability rating of 10 percent, effective as of December 16, 2010. The RO also granted service connection for radiculopathy of the left and right lower extremities, and assigned a disability rating of 20 percent for each, effective as of December 16, 2010. Finally, the RO denied the claim of entitlement to TDIU benefits. The Board notes that in his May 2014 substantive appeal, the Veteran requested a Travel Board hearing. In an August 2014 statement, the Veteran specified that he wished for a hearing before a Decision Review Officer (DRO). As such, a DRO hearing was scheduled for August 2015, and the Veteran testified before a DRO at that time. An Informal Conference Report of the hearing has been associated with the Veteran's electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann, 5 Vet. App. at 284. In his May 2014 substantive appeal and during the August 2015 hearing, the Veteran stated that his conditions on appeal had worsened. The record reflects that the Veteran was last afforded VA examinations in connection to his back disability and bilateral lower extremity radiculopathy conditions in September 2015, over two years ago. As the Veteran has alleged increased severity of these disabilities, and as the VA examinations of record are too old to reliably reflect their current severity, remand is warranted to obtain adequate examinations which reflect the current severity of the disabilities on appeal. Therefore, remand is appropriate to determine the current severity of the Veteran's back disability and radiculopathy of the bilateral lower extremities. Regarding the claim for TDIU, consideration of entitlement to a TDIU is dependent upon the impact of service-connected disabilities on a Veteran's ability to obtain or retain substantially gainful employment. The matter of a TDIU is therefore inextricably intertwined with the Veteran's claims for increased rating for his back disability and radiculopathy of the bilateral lower extremities. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected back disability, to include his bilateral lower extremity radiculopathy. A separate examination for the Veteran's bilateral lower extremity radiculopathy need not be conducted unless deemed necessary by the examiner assigned to this case. The examiner should review the claims file and should perform all appropriate tests and diagnostics, including range of motion testing and neurological evaluation. All pertinent symptomatology and findings must be reported in detail. The examiner is asked to report the range of motion measurements in degrees. Range of motion should be tested actively and passively, in weight bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. 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. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND so as to help avoid future remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing all indicated development, the Veteran's claims, including the claim for TDIU, should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. 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). (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).