Citation Nr: 21066530 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-31 109A DATE: November 1, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a cervical spine disability, prior to August 26, 2015, is remanded. Entitlement to an initial rating in excess of 20 percent for a cervical spine disability, as of August 26, 2015, is remanded. Entitlement to an initial rating in excess of 10 percent for a low back disability, prior to July 29, 2019, is remanded. Entitlement to an initial rating in excess of 20 percent for a low back disability, as of July 29, 2019, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1973 to June 1977, and from September 1984 to April 1999. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs Regional Office (RO). Most recently, in December 2020 the Board remanded the Veteran's claims for higher initial ratings for cervical spine and low back disabilities, and additional claims for service connection for right ankle, left ankle, and right knee disabilities to the Agency of Original Jurisdiction for development. A July 2021 rating decision established service connection for right ankle, left ankle, and right knee disabilities. As those claims have been fully granted, they are no longer on appeal. A request for entitlement to TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but part of a higher initial rating claim. In an August 2021 application for TDIU, the Veteran indicated that he was unable to find and maintain gainful employment, in part, due to his service-connected cervical spine and low back disabilities. Thus, although the issue of entitlement to TDIU has not been addressed previously as part of this appeal, the Board finds that it has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability, prior to August 26, 2015, is remanded. 2. Entitlement to an initial rating in excess of 20 percent for a cervical spine disability, as of August 26, 2015, is remanded. 3. Entitlement to an initial rating in excess of 10 percent for a low back disability, prior to July 29, 2019, is remanded. 4. Entitlement to an initial rating in excess of 20 percent for a low back disability, as of July 29, 2019, is remanded. In a January 2021 lettter, Dr. M, a private examiner, reported having treated the Veteran for his back disabilties since 2010. A remand is required to allow VA to obtain authorization and request records from Dr. M's office. Additionally, Dr. M. noted he had sent the Veteran to an orthopedic doctor. A remand is also required to allow VA to obtain authorization and request those records. Additionally, in an August 2021 claim for benefits, the Veteran asserted that his cervical spine and low back disabilties had increased in severity since the Veteran was last examined by VA. Specifically, the Veteran indicated that he currently was experiencing radiculopathy symptoms. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his cervical spine and low back disabilties. 5. Entitlement to TDIU is remanded. Finally, because a decision on the issues of higher initial ratings for cervical spine and low back disabilities could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. M. and the orthopedic doctor. Make two requests for the authorized records from Dr. M. and the orthopedic doctor, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA orthopedic examination by a VA orthopedist to determine the current severity of his service-connected cervical spine and low back disabilities. 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. The examiner must report the range of motion of the affected joints, expressed in degrees, to include measurements for weight-bearing, nonweight-bearing, passive motion, and active motion. The examiner must make specific findings as to whether, during the examination, there is objective evidence of additional loss of function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran experiences functional loss of the affected joints or any other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. (Continued on the next page) If the examiner diagnoses radicular symptoms of the lumbar or cervical spines, the examiner should identify the involved nerves involved and the levels of impairment for each nerve involved. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure of follow a substantially gainful occupation due to a service-connected disability or disabilities (i.e., right knee, sleep apnea, cervical spine, low back, tinnitus, right ankle, left ankle, bilateral hearing loss). If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.M. Gillett 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.