Citation Nr: 1817372 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 11-11 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for service-connected herniated nucleus pulposus (HNP), L5-S1. 2. Entitlement to a separate compensable evaluation prior to April 22, 2013, and in excess of 40 percent thereafter, for right lower extremity radiculopathy. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2017, the RO granted a separate 40 percent rating for right lower extremity radiculopathy effective April 22, 2013. As this is the type of neurological impairment contemplated by 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, it is part and parcel of the lumbar spine disability on appeal. The issue of entitlement to TDIU has been raised and is before the Board. See Rice v. Shinseki, 22 Vet. App. 447, (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The RO separately denied TDIU in January 2013, but in the November 2017 rating decision the RO indicated that the matter was deferred. To date, another decision has not been rendered; however, a separate decision is not necessary as the TDIU claim is part of the claims for increased compensation. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A preliminary review of the record reveals the matters are not ready for appellate disposition. The Veteran last underwent a VA examination to assess the severity of his HNP in April 2013, almost five years ago. The Veteran's representative maintains this examination is too old to adequately assess the current severity of the Veteran's HNP. See February 2018 Appellant's Brief. Given the assertion that the previous examination is too old, a new examination is needed. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition to needing a contemporaneous examination, the Board points out that the April 2013 VA examination does not address all necessary testing. See Correia v. McDonald, 28 Vet. App. 158 (2016). As noted in the Introduction, the issue of entitlement to TDIU has been raised by the record and has been added to the appeal. In a January 2012 statement, the Veteran indicated that he used all his sick leave as result of his lumbar spine disability, which eventually forced him to quit. The April 2013 Disability Benefits Questionnaire indicated the Veteran's HNP affected his ability to work as he was unable to sit down and walk, but did not address employability. An examination is also necessary to determine the impact of the Veteran's service-connected disabilities on his ability to work. In November 2017 correspondence notifying him of the November 2017 rating decision, the RO included a VA Form 21-8940, Application for TDIU and requested that the Veteran return the completed form "if he believed" he qualifies for TDIU. Since the claim for TDIU is part of the increased rating before the Board, the Veteran should be contacted and specifically requested to complete a VA Form 21-8940. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 2. Thereafter, the Veteran must be afforded a VA examination to determine the severity of his service-connected HNP and right lower extremity radiculopathy, as well as the effects of his service-connected disabilities on employability. The electronic claim file must be made available to the examiner for review. Any indicated diagnostic tests and studies must be accomplished. Based on the examination and review of the record, the examiner must address the following: (a) Use the most recent Disability Benefits Questionnaire for musculoskeletal disabilities, which complies with the mandates in Correia. All pertinent symptomatology and findings necessary to rate this disorder must be reported in detail. (b) Describe the functional effects and comment as to the functional limitations imposed by each of the Veteran's service-connected disabilities (back, right lower extremity radiculopathy, tinnitus and airway obstructive disease) on ordinary activity. The examiner is requested to provide a complete rationale for any opinion expressed. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 4. Then, readjudicate the Veteran's claims, including entitlement to TDIU. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. If upon completion of the above action, the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran 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 appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).