Citation Nr: 19140751 Decision Date: 05/28/19 Archive Date: 05/28/19 DOCKET NO. 18-18 773A DATE: May 28, 2019 REMANDED Entitlement to an initial evaluation in excess of 40 percent for service-connected lower back condition is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 5, 1983 to August 26, 1983. These matters before the Board of Veterans’ Appeals (Board) from a March 2018 rating decision issued by the Department of Veteran’s Affairs (VA) Regional Office (RO). The Board notes that the claim for entitlement to service connection for sciatica/radiculopathy, left lower extremity, was not an issue listed on the March 2018 Statement of the Case. However, because the Veteran’s increased rating for a back disability is on appeal, the Board construes that claim to encompass all underlying back-related and neurological conditions, including left lower extremity radiculopathy. As a result, the Board finds it proper to add the service connection claim for sciatica/radiculopathy, left lower extremity, to the appeal. See 38 C.F.R. § 4.71(a), Note 1. 1. Entitlement to an evaluation in excess of 40 percent for service-connected lower back condition and an initial evaluation in excess of 10 percent for service-connected left lower extremity radiculopathy The Veteran contends that an increased rating is warranted for his service-connected lower back condition and left lower extremity radiculopathy. His most recent VA examination to assess the severity of his disability was in November 2016, approximately three years ago. Subsequent to the November 2016 VA examination, the Veteran submitted private medical treatment records from Nevada Pain Care which documents increased pain episodes concerning his lumbar spine and left lower extremities. See November 2018 Medical Treatment Records. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of worsening regarding the conditions, to include his lumbar spine, has been set forth by the Veteran since his last examination three years ago. Accordingly, the Veteran must be provided a new VA examination to determine the current severity of his claim for increased rating. See Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is remanded. The Veteran contends that he has been unemployable since November 2010 due to his service-connected disabilities. See January 2019 Notice of Disagreement (NOD). In light of the foregoing, the Board notes that a favorable decision on the claim for an increased rating for service-connected lower back condition and left lower extremity radiculopathy could impact upon the Veteran’s claim for TDIU. Thus, the Board finds that these issues are inextricably intertwined. As a result, the appeal is remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claim file. Schedule the Veteran for a VA examination to identify the current severity of his service-connected lumbar spine and left lower extremity radiculopathy. The examiner must review the claims file and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner should provide a complete rationale for any opinions provided. The examiner is asked to report on the nature and severity of all claimed service-connected disorders. The examination must include range of motion testing expressed in degrees for active motion, passive motion, weight-bearing, and nonweight-bearing, and for the opposing joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner is also specifically asked to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, incoordination, or on flare up. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups. 2. After completion of the above, if necessary, refer the TDIU claim to the Chief Benefits Director or the Director, Compensation Service, for consideration on the issue of entitlement to TDIU. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.