Citation Nr: 20044094 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 19-37 494 DATE: June 30, 2020 REMANDED The claim for service connection for left lower extremity radiculopathy, to include secondary to service-connected low back condition is remanded. The claim for a rating in excess of 40 percent disabling for lumbar disc disease with moderate mechanical low back pain and intervertebral disc syndrome (low back disability) is remanded. The claim for a rating in excess of 20 percent disabling for right lower extremity radiculopathy is remanded. The claim for an effective date prior to September 13, 2018 for service-connected right lower extremity radiculopathy evaluated at 20 percent disabling is remanded. The claim for a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1955 to June 1957. These issues are on appeal from a January 2019 rating decision. Of note, a September 2010 VA Memo reflects that three unsuccessful attempts were made to obtain the Veteran’s service treatment records. Unfortunately, the VA claims manager found that the STRs are unavailable and further efforts would be futile. As such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. The Board has kept this unfortunate situation in mind while addressing the Veteran’s claim. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Of note, additional evidence has been added to the claims file since the issuance of the November 2019 statement of the case (SOC), and no waiver of Agency of Original Jurisdiction (AOJ) appears of record. The additional evidence includes: VAMC treatment notes; notice of outstanding relevant private treatment records (see May 2020 VA Form 21-8940); May 2020 affidavit from Veteran asserting that his conditions have worsened; and literature submitted by the Veteran related to occupational titles. Moreover, in June 2020, the record reflects that during the pendency of this claim, the regional office (RO) ordered new VA examinations for bones, back conditions and peripheral nerves, that are pertinent to all issues on appeal to include TDIU, which was raised by the Veteran in his Notice of Disagreement (NOD) and not adjudicated in the November 2019 SOC (discussed in greater details below). The Veteran continues to seek service connection for a left lower extremity lumbar radiculopathy; a higher rating for a low back condition; higher rating for a right lower extremity lumbar radiculopathy and an effective date prior to September 13, 2018. All of these issues were denied in his January 2019 rating decision. Subsequently, in June 2019, the Veteran submitted a NOD to all the issues denied in the January 2019 rating decision and raised the issue of TDIU. In addition, the Veteran elected the decision review officer review process (DRO) in his NOD. The Veteran’s representative specifically stated that the request for TDIU is not a new claim for benefits, but rather part of the Veteran’s increased rating claims (See representative statement attached to the NOD). However, the subsequent November 2019 SOC adjudicated all issues except TDIU. The Veteran has submitted several statements after the issuance of the SOC reiterating that his TDIU claim is not a new claim for benefits, but rather part of the Veteran’s increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). As such, the TDIU issue remains on appeal as tied to the Veteran’s pending increased rating claims. The AOJ has not adjudicated entitlement to a TDIU within the context of his claim for a higher rating for low back disability and higher rating for a right lower extremity disability in the first instance, and the issue must be remanded in kind. Therefore, remand for consideration by the originating agency in the first instance is necessary to ensure due process of law. As such, the AOJ must readjudicate the increased ratings claim, to include TDIU in the first instance, and readjudicate service connection for left lower extremity lumbar radiculopathy, to include consideration of all evidence of record submitted after the SOC and relevant VA examination reports ordered by the RO during the pendency of these claims. Finally, because a decision on the remanded issue of higher rating for a right lower extremity lumbar radiculopathy could significantly impact a decision on the rating at an earlier effective date, the issues are inextricably intertwined. A remand of the claim for effective date prior to September 13, 2018 for service-connected right lower extremity radiculopathy evaluated at 20 percent disabling is required. The matters are REMANDED for the following actions: 1. Obtain VA treatment records from October 20, 2018 to the present. 2. Make one final attempt to obtain the Veteran’s complete service treatment records. (VA memo in file reflects that 2010 was VA’s last attempt to obtain the Veteran’s STRs). 3. Ask the Veteran to complete a VA Form 21-4142 for IMA Medical Group, Dr. Munoz Delagado, 7259 Red Bug Lake Road, Ste. 1008, Oviedo, FL 32756. Make two requests for the authorized records from May 2019 to present, unless it is clear after the first request that a second request would be futile. 4. After the above development, and any additionally indicated development, to include obtaining pending bones, low back and peripheral nerves VA examinations/opinions has been completed, readjudicate the claims including TDIU in the first instance and issue a supplemental statement of the case. L. Chu Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, 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.