Citation Nr: 21063492 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 20-12 493 DATE: October 14, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected residuals of a lower back injury, chronic lumbar strain with intervertebral disc syndrome (IVDS) (low back disability), is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy, sciatic nerve involvement, right lower extremity, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy, femoral nerve involvement, right lower extremity, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy, sciatic nerve involvement, left lower extremity, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy, femoral nerve involvement, left lower extremity, is remanded. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty from April 18, 1975, to April 17, 1979, and August 2, 1979, to June 29, 1986. In October 2021, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board). The Board herein takes jurisdiction of the issue of entitlement to a TDIU based on the Veteran's testimony during his Board hearing. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim of entitlement to a TDIU is part of an increased rating claim when such is raised by the record). Entitlement to: (1) an initial rating in excess of 20 percent for a service-connected low back disability; (2-3) initial ratings in excess of 10 percent each for service-connected radiculopathy, sciatic nerve involvement, right and left lower extremities; and (4-5) radiculopathy, femoral nerve involvement, right and left lower extremities, is remanded. The Veteran's service-connected low back disability, and its associated neurological disabilities, were last examined by VA in February 2017, more than four years prior. The Veteran, during his October 2021 Board hearing, asserted that all of the disabilities examined had worsened since that time. On remand, the VA Regional Office (RO) should afford the Veteran an adequate examination of his service-connected low back disability and its associated service-connected neurological disabilities. Also, during his October 2021 Board hearing, the Veteran asserted that he had treatment at the Eisenhauer Army Medical Center and that he is in receipt of disability benefits from the Social Security Administration (SSA). The most recent VA treatment records available for Board review are dated in March 2021. On remand, the RO should obtain and associate with the Veteran's claims file his treatment records from the Eisenhauer Army Medical Center and his updated VA treatment records, as well as the records related to his SSA claim. Entitlement to a TDIU is remanded. During his October 2021 Board hearing, the Veteran asserted that he was entitled to a TDIU and had not worked since 2017. Of record is an October 2021 private opinion in support of his claim. The current severity of the Veteran's service-connected low back disability and its associated service-connected neurological disabilities has not yet been established and adjudication of the Veteran's increased rating claims may thus impact his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). On remand, the RO should develop the raised claim of entitlement to a TDIU. The matters are REMANDED for the following actions: 1. Provide the Veteran sufficient Veterans Claims Assistance Act of 2000 (VCAA) notice as to the issue of entitlement to a TDIU. 2. Request that the Veteran submit a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, to the Veteran's last identified employer. 4. Obtain the Veteran's VA treatment dated since March 2021. 5. Obtain the Veteran's treatment records from the Eisenhauer Army Medical Center. 6. Obtain the records related to the Veteran's claim for disability benefits from the SSA. 7. Then, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability and his service-connected radiculopathy, sciatic nerve involvement, right and left lower extremities, and radiculopathy, femoral nerve involvement, right and left lower extremities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Concerning the spine, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.