Citation Nr: 20049991 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 13-33 927 DATE: July 28, 2020 REMANDED Entitlement to an increased disability rating for lumbar strain with spondylosis and stenosis, presently evaluated as 10 percent disabling from February 26, 2009, to November 17, 2010, and from March 1, 2011, to June 23, 2012; and 20 percent disabling thereafter, is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from October 1952 to October 1956, and from January 1957 to July 1979. This matter comes before the Board of Veterans Appeals (Board) on appeal from September 2009, September 2011, October 2013, and April 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, the September 2009 granted an increased rating of 10 percent for the Veteran’s lumbar spine disability, and he appealed the rating assigned. The September 2011 rating decision granted a temporary total rating due to convalescence, effective November 17, 2010, to March 1, 2011. Because the Veteran is in receipt of a 100 percent rating for the spine for that brief period, that constitutes a maximum available benefit for that period, and it is not for consideration before the Board. The September 2011 rating decision continued the Veteran’s 10 percent rating following his period of convalescence. The October 2013 rating decision granted a partial increased rating of 20 percent effective June 23, 2012, which is in effect to the present. The April 2014 rating decision denied entitlement to TDIU. Although the Veteran did not explicitly appeal that denial (indeed, his April 2014 notice of disagreement appears to appeal the rating assigned in the October 2013 rating decision based on the claim given and his enclosed statement), a claim for TDIU is part and parcel of an increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, it is included in this appeal. Although the Veteran initially requested a hearing before a Veterans Law Judge, in June 2020, the Veteran submitted a signed withdrawal of his hearing request, indicating he was unable to attend a hearing and would prefer his claim be adjudicated based on the evidence of record. 1. Entitlement to an increased disability rating for lumbar strain with spondylosis and stenosis is remanded. The Veteran’s lumbar spine disability is rated under Diagnostic Code 5237, which compensates for lumbosacral strain, and applies the General Rating Formula for Diseases or Injuries of the Spine. When evaluating diseases of the spine, any associated objective neurological disability is to be rated separately under its own corresponding diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237, Note 1. The Veteran was most recently afforded a VA examination in January 2019, which concluded that the Veteran does not suffer from any neurological abnormalities related to his spine disability, such as neuropathy or radiculopathy. This is contrary to his prior VA examinations and private medical evidence, all of which have found some level of radiculopathy or other neurological complication. No reason was given for this discrepancy in the 2019 VA examination, which calls this examination report into question. As such, the Board must remand this claim so that a new examination may be conducted which assesses the present severity of the Veteran’s lumbar spine disability, to include any neurological complications. Thereafter, the RO should readjudicate the claim, to include consideration of any separately ratable neurological complications or symptoms of his disability. 2. Entitlement to total disability based on individual unemployability (TDIU) Because the outcome of the increased rating claim for a low back disability may have a direct bearing on the Veteran’s claim for TDIU, that issue is remanded as inextricably intertwined. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his service connection claim. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Specifically, the examiner should address whether or not the Veteran has any neurological complications related to his disability, to include his previously noted radiculopathy. If found, the severity of those symptoms should also be reported in addition to the severity of the Veteran’s spine disability itself. 3. When readjudicating the claim, the RO should include consideration of any neurological complications related to his service connected low back disability. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel