Citation Nr: 18143981 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-07 118 DATE: October 22, 2018 ORDER Entitlement to an evaluation of 10 percent for left lower extremity radiculopathy prior to August 11, 2017 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 11, 2017 is granted. REMANDED Entitlement to an increased rating in excess of 40 percent for lumbar spine degenerative disc disease with degenerative joint disease and spondylolisthesis (lumbar spine disability) is remanded. Entitlement to an evaluation in excess of 10 percent prior to August 11, 2017 and in excess of 20 percent thereafter for left lower extremity radiculopathy is remanded. Entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran had mild left lower extremity radiculopathy prior to August 11, 2017. 2. After resolving reasonable doubt in the Veteran’s favor, his service-connected disabilities prevented him from securing and following substantially gainful employment prior to August 11, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for left lower extremity radiculopathy prior to August 11, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5242, 4.124a, Code 8520 (2017). 2. The criteria for entitlement to TDIU prior to August 11, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA). This case was most recently remanded in August 2017 for further development; it has since been re-assigned to the undersigned. Since the last Board remand, the Veteran was granted service connection for right and left lower extremity radiculopathy pursuant to 38 C.F.R. § 4.71a, Code 5242, General Rating Formula for Diseases and Injuries of the Spine (General Formula), Note (1). Entitlement to TDIU from August 11, 2017 was also granted. The Agency of Original Jurisdiction (AOJ) included entitlement to increased evaluations for right and left extremity radiculopathy and entitlement to TDIU in its August 2018 supplemental statement of the case (SSOC) and the Veteran’s representative included these issues in its October 2018 Post-Remand Brief. Thus, the Board finds that it has jurisdiction over these issues. 1. Entitlement to a compensable evaluation for left lower extremity radiculopathy prior to August 11, 2017. In its August 2018 rating decision, the AOJ granted service connection for left lower extremity radiculopathy, effective August 11, 2017, pursuant to 38 C.F.R. § 4.71a, Code 5242, General Formula, Note (1). Under Code 8520, for paralysis of the sciatic nerve, a rating of 10 percent is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The Veteran was noted to have mild left lower extremity radiculopathy in the sciatic nerve in an August 2012 VA spine examination. Indeed, the examiner explicitly diagnosed “severe thoracolumbar degenerative joint and disc disease with left lower extremity radiculopathy.” See August 2012 VA spine examination (emphasis added). This diagnosis is uncontradicted by the record. Because the issue of an increased rating for the Veteran’s lumbar spine disability remains before the Board, the Board finds that it has jurisdiction to grant a compensable rating for mild left lower extremity radiculopathy prior to August 11, 2017 pursuant to Note (1). Thus, a compensable rating of 10 percent for left lower extremity radiculopathy prior to August 11, 2017 is granted. [The Board notes that the Veteran’s appeal to obtain an increased evaluation for his left lower extremity radiculopathy remains on appeal and is not affected by this decision.] 2. Entitlement to TDIU prior to August 11, 2017. After considering the grant of a compensable rating for left lower extremity radiculopathy prior to August 11, 2017, the Veteran meets the schedular criteria for entitlement to TDIU prior to August 11, 2017. See 38 C.F.R. § 4.16(a). Although an August 2012 VA spine examiner opined that the Veteran could do sedentary work, see August 2012 VA spine examination, the examiner did not consider the lay statements from the Veteran’s pastor and friend, who both described the Veteran’s difficulty with walking, difficulty with stairs, discomfort with sitting for long period of time, need for assistance to get out of his seat, and inability to stand for more than two to three minutes at a time. See June 2012 statements. The lay statements are indeed corroborated, at least in part, by the August 2012 VA spine examiner, who noted that the Veteran required constant use of a wheelchair. See August 2012 VA spine examination. Thus, the Board affords little probative weight to the examiner’s opinion. The Board notes that the Veteran was granted entitlement to TDIU from August 11, 2017. The record does not reflect an increase in symptoms affecting the Veteran’s ability to work on or around August 11, 2017. For example, an August 2017 VA spine examiner opined that the Veteran was unable to stand, needed a wheelchair (and had been in a wheelchair for several years), and required continual assistance with everyday activities. See August 2017 VA spine examination. A similar disability picture is reflected in the August 2012 VA spine examination and lay statements by the Veteran’s pastor and friend. Thus, after resolving reasonable doubt in the Veteran’s favor, he was equally as unable to secure and follow substantially gainful employment prior to August 11, 2017 as he was thereafter, and entitlement to TDIU prior to August 11, 2017 is warranted. REASON FOR REMAND All remaining issues are remanded. The Veteran submitted a private medical records release for Dr. E. Lord, MD, in August 2017. See August 2017 correspondence. While the AOJ sent an initial request for such records, see September 2017 correspondence, there is no record of a response from Dr. Lord’s office; a second request was never attempted. Although the AOJ notified the Veteran of its initial request to Dr. Lord, see September 2017 correspondence, it did not notify him that the records were never received. Because the AOJ did not make reasonable effort to obtain potentially relevant records, remand is required. See 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following action: 1. The AOJ should obtain, if possible, records of all private evaluations and treatment the Veteran has received for his disabilities, notably from Dr. E. Lord. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If any private records identified are not received, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 2. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from March 2018 to the present. CONTINUED ON NEXT PAGE 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel