Citation Nr: 1807113 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 04-22 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for right-sided radiculopathy prior to July 26, 2004, and in excess of 20 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty form May 1981 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal December 2003 and December 2004 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the Board issued a decision which denied the Veteran's claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2012, the Court issued an Order granting a Joint Motion of the Parties to vacate the Board's decision and to return the case to the Board for further consideration. In May 2013, the Board issued a decision which denied the Veteran's claims. The Veteran appealed this decision to the Court; and in January 2014, the Court issued an Order granting a Joint Motion of the Parties to vacate the Board's decision and to return the case to the Board for further consideration. In November 2014, the Board remanded this matter for additional evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking an increased evaluation for his right-sided radiculopathy and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating). In a September 2017 statement, the Veteran indicated that his radiculopathy of the right lower extremity had substantially worsened since his most recent VA examinations of the spine and peripheral neuropathy in November 2016. Specifically, he reported that he was now using a walker to ambulate. The constant use of a walker or cane to get around was also noted in the Veteran's October 2017 private vocational assessment, which did not include a physical examination. However, an October 2017 VA treatment record reflect that the Veteran had been walking in excess of a mile pursuant to a weight loss and exercise program, and a December 2017 VA treatment record noted that the Veteran's walking/mobility was essentially normal and he was considered a negative fall risk. Under these circumstances, a new examination is required to ascertain the current severity of the Veteran's right-sided radiculopathy. Relevant ongoing medical records must also be requested. 38 U.S.C.A. § 5103(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The issue of entitlement to a TDIU rating is inextricably intertwined with the other issue being developed herein. See 38 C.F.R. § 19.31 (2017); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Thus, such issue is also remanded. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him during the course of this appeal for his right-sided radiculopathy. After securing any necessary releases, the AOJ must request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Thereafter, schedule the Veteran for an examination to determine the current severity of his service-connected radiculopathy of the right lower extremity. The electronic claims file should be reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests should be accomplished. All pertinent symptomatology and findings must be reported in detail. 3. Once the above actions have been completed, and any additional development deemed necessary has been accomplished, the issues on appeal must be readjudicated. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate review, if in order. 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).