Citation Nr: 21075344 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-13 759 DATE: December 20, 2021 REMANDED Entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Prior to March 5, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the issue of entitlement to an increased rating for lumbosacral strain was initially before the Board in January 2018, when it was remanded for additional development. See January 2018 BVA Decision. Thereafter, in a July 2019 decision, the Board, in pertinent part, denied the Veteran's claims of entitlement to a rating in excess of 20 percent for lumbosacral disability and to an initial rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity. See July 2019 BVA Decision. The Veteran appealed the July 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2021 Memorandum Decision, the Court vacated the portions of July 2019 Board decision denying a disability rating in excess of 20 percent for a lumbosacral disability and to a disability rating in excess of 10 percent for left lower extremity radiculopathy and remanded the matters for further proceedings. See April 2021 CAVC Decision. 1. Entitlement to a rating in excess of 20 percent for lumbosacral strain In the above-mentioned July 2019 decision, the Board denied the Veteran's claim for a rating in excess of 20 percent for lumbosacral strain. In the April 2021 Memorandum Decision, the Court found that the Board failed to make necessary factual findings regarding the adequacy of VA examinations conducted in 2011, 2018, and 2019. The Court noted that its review was frustrated by the Board's failure to make the necessary factual findings in the first instance and vacated and remanded the matter for further proceedings consistent with the April 2021 Memorandum Decision. The Veteran was most recently provided with a VA back conditions examination in February 2019. However, in correspondence submitted in January 2020, the Veteran reported that his back disability has worsened as he is unable to "sit long, stand long, or walk far." He also stated that his sleep is disrupted due to his back pain. Thus, because there are reports of worsening, a remand is necessary to obtain a VA examination to determine the current severity of the Veteran's service-connected lumbosacral strain. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity In the above-mentioned July 2019 decision, the Board granted an earlier effective date for the award of service connection for lumbar radiculopathy of the left lower extremity and found that an initial disability rating in excess of 10 percent was not warranted. In the April 2021 Memorandum Decision, the Court found that the Veteran's radiculopathy rating was properly before the Board and that the Board failed to adequately explain why the Veteran's lower extremity radiculopathy did not warrant a rating in excess of 10 percent. The Court noted that the Board did not define the terms mild or moderate incomplete paralysis. The matter was vacated and remanded for further proceedings consistent with the Memorandum Decision. The Veteran was last provided a VA examination for his service-connected lumbosacral strain in February 2019. A subsequent November 2019 private treatment record shows that the Veteran endorsed paresthesias of the left foot and occasional weakness in his left leg. On examination, the private physician noted positive bilateral straight leg raises and decreased sensation to pinprick to the lateral foot bilaterally. The impression included decreased sensation at S1 level bilaterally. The Board further notes that a letter, received in July 2020, shows that the Veteran endorsed increased numbness in his legs and feet. In this regard, he indicated that he had become unstable on his feet and reported that he had fallen on multiple occasions and sustained injuries as a result of his service-connected radiculopathy. See July 2020 Medical Treatment Record Non-Government Facility. Thus, because there are reports of worsening, a remand is necessary to obtain a VA examination to determine the current severity of the Veteran's service-connected radiculopathy of the left lower extremity. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 3. Prior to March 5, 2020, entitlement to a TDIU is remanded. In July 2019, the Veteran submitted certificates of medical care from Dr. Shannon M. Pope which indicated that he was to be excused from work from March 2019 through August 2019 due to a flare-up of his service-connected lumbosacral strain and radiculopathy of the left lower extremity. See July 2019 Medical Treatment Record Non-Government Facility. Thereafter, in a January 2020 statement, the Veteran reported that he was not able to work because his service-connected lumbosacral strain prevented him from sitting or standing for long periods of time and from walking long distances. He further reported that his sleep was disrupted due to pain from his service-connected low back and bilateral hip disabilities. See January 2020 Correspondence. The Board further notes that a letter, received in July 2020, shows that the Veteran was experiencing increased numbness in his legs and feet, which caused instability and falls that caused him to sustain additional injuries. See July 2020 Medical Treatment Record Non-Government Facility. The Board finds that the issue of entitlement to a TDIU is part and parcel of the Veteran's claim for an increased disability rating. See Rice v Shinseki, 22 Vet. App. 447 (2009). However, as the issue on appeal is being remanded, consideration of the Veteran's claim of entitlement to a TDIU, at this juncture, would be premature as the issue is inextricably intertwined with the remanded claim on appeal. Accordingly, the Board will defer TDIU adjudication. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the claims file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his back disability. His claims file must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner should provide the range of motion of the Veteran's back and comment on the degree of functional loss due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner should report (in degrees) the point at which pain is objectively recorded. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the back is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing if possible. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his left lower extremity radiculopathy. His claims file must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner should review the pertinent documents in the Veteran's claims file in connection with the examination. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected radiculopathy, as well as the impact that such has on his occupational functioning. 4. Thereafter, readjudicate any claims remaining on appeal. S. MORRAD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.