Citation Nr: 18148253 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-38 448 DATE: November 7, 2018 REMANDED Entitlement to a rating in excess of 20 percent for post-operative herniated nucleus pulposus (HNP) of the lumbosacral spine is remanded. Entitlement to an initial rating in excess of 10 percent for right Achilles tendonitis is remanded. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an initial rating in excess of 40 percent for right lower extremity (RLE) radiculopathy with atrophy of the right calf is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1993 to August 1997. The Veteran presented testimony at a hearing held by the undersigned Veterans Law Judge in March 2018. 1. Entitlement to a rating in excess of 20 percent for post-operative HNP of the lumbosacral spine is remanded. The Veteran was examined for his low back disability in September 2013. At that time, the examiner noted the Veteran did not use a back brace or cane and had not experienced any incapacitating episodes. Subsequent to that examination, the Veteran testified at his Board hearing that he now constantly uses a back brace and regularly uses a cane to get up from chairs. See Board hearing transcript, March 2018. As the new need for assistive devices suggest a possible increase in the severity of the Veteran’s service-connected low back disability, the claim must be remanded for a new VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 2. Entitlement to an initial rating in excess of 10 percent for right Achilles tendonitis is remanded. While the record contains a September 2013 VA examination regarding the Veteran’s right Achilles tendonitis, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups, including any additional limitation of motion. This claim must be remanded for a new VA examination. 3. Entitlement to an initial rating in excess of 10 percent for GERD is remanded. The Veteran was most recently examined for his GERD in May 2015. Subsequent to that examination, the Veteran testified at his Board hearing that his GERD medication was increased in December 2017 and that he experiences more severe dysphagia than noted at the time of the May 2015 examination. See Board hearing transcript, March 2018. As these new symptoms and increased medication suggest a possible increase in the severity of the Veteran’s service-connected GERD, the claim must be remanded for a new VA examination. See Green, supra; Schafrath, supra. Additionally, the Veteran indicated at his Board hearing that he had an appointment with a VA gastroenterologist scheduled for April 2018. These new VA treatment records must be obtained and associated with the claims file. 4. Entitlement to an initial rating in excess of 40 percent for RLE radiculopathy with atrophy of the right calf is remanded. The Veteran was most recently examined for his RLE radiculopathy in September 2013. Subsequent to that examination, the Veteran testified at his Board hearing that the medication for this disability was increased in July 2017 because he was experiencing more severe radicular symptoms. See Board hearing transcript, March 2018. As this increased medication suggest a possible increase in the severity of the Veteran’s service-connected RLE radiculopathy, the claim must be remanded for a new VA examination. See Green, supra; Schafrath, supra. 5. Entitlement to a TDIU is remanded. As the Veteran is challenging the disability ratings assigned for his orthopedic disabilities, and the record raises assertions that he is unemployable because of these service-connected disabilities, the determination as to whether he is entitled to a TDIU is part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also Board hearing transcript, March 2018. Given such, the Board has jurisdiction over the TDIU claim as a part of his increased rating claims. Because a decision on the increased rating claims could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. The TDIU claim must also be remanded. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from March 2018 to the present. 2. Schedule the Veteran for an examination(s) to determine the current severity of his low back disability, right Achilles tendonitis, GERD, and RLE radiculopathy. The examiner(s) should provide a full description of the disability and report all signs and symptoms necessary for evaluating each disability under the rating criteria. The examiner(s) must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to each service-connected disability alone and discuss the effect of such disability on any occupational functioning and activities of daily living. The examiner must also attempt to elicit a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner(s) should also provide on opinion whether on whether each disability prevents him from obtaining and maintaining gainful employment. With regard to the orthopedic disabilities, the examiner must also test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Moore, Counsel