Citation Nr: 21003934 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-01 730 DATE: January 25, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbar spine degenerative joint disease with intervertebral disc syndrome (IVDS) is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left 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 Army from July 1977 to July 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2013 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a February 2020 Travel Board hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. 1. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative joint disease with IVDS is remanded. 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. 3. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. The Veteran was originally granted service connection for a lumbar spine disability with accompanying bilateral lumbar radiculopathy in a December 2013 AOJ rating decision. The Veteran appealed his initial 10 percent disability ratings for these conditions and testified at the February 2020 Board hearing to a worsening of his lumbar spine and lower extremity disabilities. The Board observes that the Veteran was last afforded VA examinations for his lumbar spine and bilateral radiculopathy disabilities in November 2013 and September 2014, respectively. As the Veteran indicates a worsening since his last VA examinations, the Board finds that the 2013 and 2014 VA examinations are too remote to adequately assess the severity of his lumbar spine and bilateral radiculopathy disabilities. Therefore, a remand is warranted to afford the Veteran contemporary examinations ascertaining the current severity of these disabilities. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 4. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the issues of entitlement to increased ratings that are being remanded for additional VA examinations. Issues are considered to be inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the Board defers consideration of this issue at this time. Additionally, the Board notes that the Veteran indicated at the February 2020 hearing that he was in receipt of disability payments from the Social Security Administration. In February 2020 correspondence, the Veteran submitted documentation confirming receipt of Social Security disability payments since 2013. On remand, the AOJ should obtain Social Security Administration copies of documents, including medical records, and any decisions issued in connection with the Veteran’s claim for benefits. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records and associate them with the claims file. 2. Request from the Social Security Administration copies of documents, including medical records, and any decisions issued in connection with the Veteran’s claim for benefits. All attempts to obtain such records should be documented in the claims file. 3. Schedule the Veteran for VA examinations to determine the current severity of his service-connected degenerative disc disease of the lumbar spine with IVDS as well as his bilateral lumbar spine radiculopathy. The Veteran’s electronic claims file must be made available for review. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. A complete rationale for any opinions expressed must be provided. 4. Thereafter, consider all of the evidence of record and readjudicate the issues on appeal, including entitlement to a TDIU. If the benefits sought on appeal are not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond before returning the case to the Board for review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.