Citation Nr: 1808797 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-05 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to June 26, 2017 and a rating in excess of 40 percent thereafter for spondylolysis of L5-S1 with degenerative disk disease (DDD) and spinal stenosis. 2. Entitlement to a rating in excess of 10 percent prior to June 26, 2017 and a rating in excess of 20 percent thereafter for nerve root compression of right lower extremity. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). (The issues of whether new and material evidence has been received to reopen previously denied claims for entitlement to service connection for psoriasis and mild ischemic heart disease and entitlement to service connection for renal cysts are the subject of a separate decision.) REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran had active service from November 1977 to January 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In the March 2012 substantive appeal, the appellant requested a Board hearing by videoconferences. In a written statement received September 2017, the Veteran withdrew his hearing request. The hearing request is withdrawn. 38 C.F.R. § 20.704 (2017). Entitlement to TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the Court's holding in Rice, as well as the appellant's assertions that he is unable to maintain full-time employment due to his service-connected disabilities, the Board has amended the issues on appeal to include entitlement to TDIU as reflected above. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was last afforded a VA examination in June 2017. In December 2017 informal hearing presentation (IHP), the Veteran's representative asked for a new VA examination to determine the current severity of his claimed conditions. The Veteran asserted that he suffered from chronic flare-ups with his back condition and was requesting an examination to be held during a flare-up. Additionally, the Veteran asserted that his lower extremity radiculopathy was worse and caused him to be totally incapacitated. In light of the above, a new VA examination should be scheduled. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Schedule the Veteran for the appropriate VA examination(s) to determine the severity of his service-connected low back disability and lower right extremity radiculopathy. The electronic claims file should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed, including those necessary to determine whether the Veteran has lumbar-related neurological abnormalities. The examiner should test the range of motion of the spine in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. The examiner should report the range of motion in degrees and comment on the presence and extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. If such is not possible, the examiner should explain why. The examiner should indicate whether the Veteran's lumbar spine disability results in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should elicit from the Veteran a complete history of any flare-ups of his low back disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran's low back disability. The examiner should describe the additional loss, in degrees, if possible. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If this cannot be done, the examiner should explain why. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examination was not performed during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner should provide a full description of the effects of the Veteran's lower right extremity radiculopathy on his ability to perform ordinary activities over the course of the appeal period. The examiner should also fully describe the Veteran's functional and occupational impairment due to the disabilities. 3. Complete the above development and any additional development that is deemed warranted. Then adjudicate the issues on appeal, and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before a claim is returned to the Board. 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 (West 2014). _________________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).