Citation Nr: 20009935 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-54 648 DATE: February 6, 2020 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine (hereinafter, “lumbar spine disability”) is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1975 to September 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Oakland, California. In addition to the issues listed above, the Veteran also initiated an appeal with respect to an October 2015 rating decision that denied service connection for sciatica of the left lower extremity, claimed as secondary to the service-connected disability of his lumbar spine. That issue was included in a September 2016 statement of the case (SOC). However, he withdrew the issue from appeal by a statement dated in October 2016. After additional evidence was received, the agency of original jurisdiction subsequently granted service connection and a 20 percent rating for radiculopathy of the left lower extremity by a decision entered in May 2017. The Veteran has not expressed dissatisfaction with that decision, to include the assigned rating. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In January 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. 1. Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded. 2. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. The Veteran testified at the January 2020 Board hearing that his service-connected lumbar spine disability and associated radiculopathy of the right lower extremity had increased in severity since the time of the most recent VA examination in April 2017. In light of his testimony, a new examination in required. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA should have scheduled the appellant for another examination under circumstances where he complained of increased disability two years after his last examination). The Veteran also reported ongoing medical treatment for his service-connected disabilities, as well as treatment through VA-referred providers, Lifeline Chiropractic and H and H Pain Management. A remand is required to procure the records of that treatment. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In addition, the record reflects that the Veteran has been in receipt of disability benefits from the Social Security Administration (SSA). A copy of a July 2015 SSA administrative decision is of record. However, the underlying medical records have not been procured. Those records need to be obtained as well. Id.; see also Hayes v. Brown, 9 Vet. App. 67, 74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). 3. Entitlement to a TDIU is remanded. The development sought with respect to the other claims herein remanded may impact the Veteran’s entitlement to a TDIU. In other words, the TDIU issue is inextricably intertwined with the other appellate claims. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another benefit). Accordingly, the TDIU issue will be remanded as well. These matters are REMANDED for the following action: 1. Ask the Veteran to provide releases for relevant records of treatment from Lifeline Chiropractic and H and H Pain Management, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Ask the SSA to provide copies of any records in its possession pertaining to its consideration of the Veteran’s application for SSA benefits, to include any medical records considered in making that award, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 3. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159 . The evidence obtained, if any, should be associated with the record. 4. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination of his back and lower extremities. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination of the lumbar spine must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if possible. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. Finally, the examiner should also describe the impact of the Veteran’s disabilities on his ability to perform functions related to physical and sedentary employment. A complete rationale for any medical opinions must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs (to include obtaining a psychiatric review examination, if necessary), the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.