Citation Nr: 20004282 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 12-07 689 DATE: January 17, 2020 REMANDED Entitlement to a rating in excess of 20 percent for service-connected low back strain with myofascial pain prior to October 31, 2016 is remanded. Entitlement to a rating in excess of 40 percent for service-connected low back strain with myofascial pain from October 31, 2016 is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy from October 31, 2016 to July 27, 2017 is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy from July 28, 2017 is remanded. Entitlement to an effective date earlier than October 7, 2010, for the assignment of a 20 percent rating for low back strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to March 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2018 Decision, the Board denied entitlement to a rating in excess of 20 percent for low back strain prior to October 31, 2016, a rating in excess of 40 percent for low back strain from October 31, 2016, a rating in excess of 10 percent for right lower extremity radiculopathy from October 31, 2016 to July 27, 2017, a rating in excess of 20 percent for right lower extremity radiculopathy from July 28, 2017, as well as entitlement to an effective date earlier than October 7, 2010, for the assignment of a 20 percent rating for low back strain. In a September 2018 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board’s decision to grant (1) a 40 percent rating for low back strain from October 31, 2016, (2) a separate rating for right lower extremity radiculopathy, and (3) an earlier effective date of October 7, 2010, for the assignment of a 20 percent rating for low back strain are favorable grants, and therefore, should not be disturbed. However, the parties agreed that the Board erred in issuing the January 2018 decision, as the Veteran had requested a hearing in his February 2017 VA Form 9, but no hearing was scheduled. Accordingly, in a September 2018 Order, the Court of Appeals for Veterans Claims (the Court) set aside the January 2018 Board decision to the extent that it denied the above-captioned claims, and remanded the case to the Board to afford the Veteran a hearing. In a June 2019 Correspondence, the Veteran was notified that a hearing was scheduled in this matter in July 2019. The Veteran did not attend the hearing. As the Veteran was properly notified of the time, date and location of the scheduled Board hearing and did not appear, the hearing request is deemed withdrawn. The Board notes that at time of the June 2018 Decision, the Board declined to take jurisdiction of the Veteran’s TDIU claim, as he had requested a hearing on the matter, but had not yet been afforded one. As the Veteran’s hearing request has been deemed withdrawn and given the Veteran’s contention that his lower back condition renders him unemployable, the Board will take jurisdiction of the Veteran’s claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). Under Rice, the Board has jurisdiction over the TDIU claim, and for the purpose of clarity, has separately captioned the issue on the title page. 1. Entitlement to a rating in excess of 20 percent for service-connected low back strain with myofascial pain prior to October 31, 2016 is remanded. 2. Entitlement to a rating in excess of 40 percent for service-connected low back strain with myofascial pain from October 31, 2016 is remanded. 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy from October 31, 2016 to July 27, 2017 is remanded. 4. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy from July 28, 2017 is remanded. 5. Entitlement to an effective date earlier than October 7, 2010, for the assignment of a 20 percent rating for low back strain is remanded. 6. Entitlement to a TDIU is remanded. A review of the claims file indicates that the Veteran was scheduled for a VA examination to assess the severity of his low back disability and associated radiculopathy in June 2019. The record also indicates that the Veteran was scheduled to undergo an examination related to his TDIU claim around the same period. A June 2019 entry in the claims file indicates that the Veteran reported that he would be unable to attend an examination, as he was out of town in Kansas City. The same entry indicates that the Veteran’s examinations were rescheduled to be conducted at the Kansas City VAMC; however, there is no further indication in the claims file that the examinations were rescheduled. Accordingly, a remand is warranted to afford the Veteran a VA examination. Additionally, the medical opinion obtained on remand should address the present impact of all his service-connected disabilities on his ability to secure and follow substantially gainful employment. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination to determine the nature and severity of his service-connected lumbar spine disability and associated right lower extremity radiculopathy. The examiner should review pertinent documents in the Veteran's claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. a.) The examiner should conduct range of motion studies and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of motion. b.) The examiner should test the range of motion 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. c.) The examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disabilities (i.e., low back, right lower extremity radiculopathy, cervical strain, and arthritis of the sternoclavicular joint) and discuss the occupational impairment caused by the service-connected disabilities. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.