Citation Nr: 18147259 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-19 306A DATE: November 2, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent from August 1, 2011, and in excess of 20 percent from February 1, 2013, for degenerative disc disease (DDD) of the thoracolumbar spine is remanded. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity radiculopathy associated with DDD of the thoracolumbar spine is remanded. Entitlement to an initial disability rating in excess of 20 percent for right foot hallux valgus with arthritis of the first metatarsophalangeal joint is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 28, 2012, and from February 1, 2013, is remanded. REASONS FOR REMAND The Veteran had active service from May 1984 to July 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina, and has been subsequently transferred to the RO in Oakland, California. The Board notes that a temporary total (100 percent) rating is in effect for DDD of the thoracolumbar spine (under 38 C.F.R. § 4.30) for the period from November 28, 2012, to January 31, 2013. As the maximum rating has already been awarded for this period, the matter of an increased rating for this period is moot and will not be addressed herein. The Veteran was then granted an increased disability rating of 20 percent thereafter. Furthermore, the service-connected disabilities of right foot hallux valgus, with arthritis of the first metatarsophalangeal joint, was increased to 20 percent, and radiculopathy of the right lower extremity was also increased to 20 percent. Since these grants did not constitute a full grant of the benefits sought on appeal, these claims remain for appellate review. AB v. Brown, 6 Vet. App. 35, 39 (1993). In addition, the evidence of record suggests that his service-connected disability affects his ability to obtain and maintain gainful employment. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was in receipt of a 100 percent disability rating for his DDD of the thoracolumbar spine from November 28, 2012, to January 31, 2013, as well as special monthly compensation (SMC) under 38 U.S.C. § 1114(s) during his period. Such means that the claim for TDIU from November 28, 2012, to January 31, 2013, is moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate)). Therefore, what remains for consideration is entitlement to a TDIU for the period prior to November 28, 2012, and from February 1, 2013, and is characterized as such above.   The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. 1. Entitlement to an initial disability rating in excess of 10 percent from August 1, 2011, and in excess of 20 percent from February 1, 2013, for DDD of the thoracolumbar spine A remand is required for the low back. In increased evaluation claims, VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 (2018); Correia v. McDonald, 28 Vet. App. 158 (2016). In April 2014, the Veteran presented for an examination of his low back disability. The examiners provided range of motion measurements of the lumbar spine without commenting on pain for passive, active, weight-bearing, or nonweight-bearing motion. The Board therefore finds that a remand is needed to obtain an adequate VA examination, to evaluate the Veteran’s and degenerative disc disease of the thoracolumbar spine under the applicable rating criteria. 2. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity radiculopathy associated with DDD of the thoracolumbar spine In light of the above determination, the Board finds it must also remand the Veteran’s claim for increased rating for right lower extremity radiculopathy as inextricably intertwined with the issue of entitlement to initial increased disability ratings for DDD of the thoracolumbar spine, as the evidence developed during the processing of the latter claim may impact the former’s rating. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran’s claim for the second issue).   3. Entitlement to an initial disability rating in excess of 20 percent for right foot hallux valgus with arthritis of the first metatarsophalangeal joint First, remand is required for a current examination. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). A 2014 VA foot examination was conducted. In a letter from a VA podiatrist, it was noted that the Veteran was scheduled to have surgical intervention in April 2018. Thus, it appears that the right foot disability may have worsened. Second, remand is required to obtain current VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records. 38 C.F.R. § 3.159(c)(2). According to an April 2018 letter from the Veteran’s VA podiatrist, he is currently receiving care for chronic pain for both feet. These records should be obtained and associated with the record. 4. TDIU Regarding TDIU, remand is required as the issue is inextricably intertwined with remanded issues. The Veteran asserts that his service-connected disabilities render him unemployable. 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. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Because the Board is remanding several claims for an initial increased evaluation, remand is required because this issue is inextricably intertwined with the effectuation of the resolution of these issues.   The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records that have not been previously submitted. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, schedule the Veteran for VA examination by an appropriate medical professional to determine the current severity, along with a retrospective medical opinion, of the Veteran’s service-connected DDD of the thoracolumbar spine and radiculopathy of the right lower extremity. The examiner must utilize the appropriate Disability Benefits Questionnaire to assess both service-connected disabilities. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the DDD of the thoracolumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. 4. After any additional records are associated with the claims file, schedule the Veteran with an appropriate examination to determine the severity of the service-connected right foot hallux valgus with arthritis of the metatarsophalangeal. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. 5. Develop a claim for TDIU, to include providing the Veteran appropriate notice and determining whether an examination or examinations in this regard are necessary. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yoo, Counsel