Citation Nr: 21012378 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-17 910 DATE: March 4, 2021 REMANDED 1. Entitlement to increases in the staged (20 percent prior to December 16, 2014, and 40 percent from that date) ratings assigned for lumbosacral spondylosis is remanded. 2. Entitlement to increases in the staged (20 percent prior to July 10, 2020, and 60 percent from that date) ratings assigned for a left lower extremity nerve disability is remanded. 3. Entitlement to increases in the staged (10 percent prior to February 27, 2012, 20 percent from February 27, 2012 to December 16, 2014, and 10 percent from December 16, 2014 to July 10, 2020, and 20 percent from that date) ratings assigned for a right lower extremity nerve disability is remanded. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 10, 2020, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1996 to September 2000. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision (which increased the rating for left posterior tibial neuralgia to 20 percent, effective March 15, 2011, and continued a 10 percent rating for right posterior tibial neuralgia), and from a March 2013 rating decision (which granted service connection for lumbosacral spondylosis, rated 20 percent, and for right lower extremity sciatic nerve radiculopathy, rated 10 percent, both effective February 27, 2012). A December 2014 rating decision increased the rating for lumbosacral spondylosis from 20 to 40 percent, effective December 16, 2014. A December 2014 supplemental statement of the case (SSOC) encompassed the separate 10 percent rating for right lower extremity sciatic nerve radiculopathy into the rating for right lower extremity tarsal tunnel syndrome. In May 2016, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. In December 2017 and September 2019, the case was remanded for additional development. An interim (July 2020) rating decision increased the ratings for the left lower extremity nerve disability from 20 to 60 percent, and the right lower extremity nerve disability from 10 to 20 percent, each effective July 10, 2020. The issues are characterized accordingly. 1., 2., 3. Entitlement to increases in the ratings assigned for lumbosacral spondylosis, left lower extremity nerve disability, and right lower extremity nerve disability The Board is aware that this case was previously remanded and regrets the delay inherent with another remand. However, further development is required to comply with VA’s duty to assist the Veteran in the development of facts pertinent to his claims. 38 C.F.R. § 3.159. A review of the record found that potentially pertinent private (and possibly VA) treatment records appear to remain outstanding. On July 2020 VA (fee basis) back examination, the Veteran reported that he has constant, sharp, throbbing back pain that goes down his bilateral extremities. He reported that he goes to an emergency room (ER) at least twice a month due to flare-ups (manifested by pain, spasms, and shooting pains) to receive Toradol injections. He stated, “If I can’t make it to the ER I call my doctor at the VA,” suggesting treatment at a non-VA ER. [The record contains records of VA treatment through July 2020, but such records show Toradol injections in 2012 and 2013 (and not recently as reported by the Veteran, again suggesting treatment at a non-VA facility).] Outstanding records of his treatment for lumbar spine and lower extremity symptoms are pertinent evidence in these claims for increase and must be obtained. See Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). [Because VA treatment records are constructively of record (and may contain pertinent information), any outstanding pertinent VA records must also be secured.] 4. Entitlement to a TDIU rating prior to July 10, 2020 When evidence of unemployability is submitted during the course of an appeal of a rating assigned for a disability, a claim for entitlement to a TDIU rating is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has raised the issue of entitlement to a TDIU rating several times during the period on appeal. See February 2013, May 2016, and April 2019 VA Forms 21-8940. He contends that he has been unable to maintain substantially gainful employment due to his service-connected disabilities, specifically including his lumbar spine disability, bilateral lower extremity nerve disabilities, and psychiatric disability. [An August 2020 rating decision granted service connection for major depressive disorder, rated 70 percent, effective August 20, 2019.] Accordingly, the Board finds that the matter of entitlement to a TDIU prior to July 10, 2020 (from which date a schedular 100 percent rating has been assigned) is reasonably raised in the instant claims for increase. The claim for a TDIU rating is inextricably intertwined with the increased rating claims being remanded, and appellate consideration of that matter must be deferred pending resolution of the increased rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his low back and bilateral lower extremity nerve disabilities, specifically including all records since July 2020 (when the most recent VA treatment records in the record were added to the record). 2. Also ask the Veteran to identify all private providers of evaluations or treatment he has received for his low back and bilateral lower extremity nerve disabilities (records of which are not already in the record) and to submit authorizations for VA to secure for the record complete outstanding clinical records from all such providers identified, specifically including records of ER treatment for low back and lower extremity pain, including with Toradol injections (as reported on July 2020 back examination). If he does so, obtain all records identified. 3. Thereafter, review the record, arrange for any further development suggested (by the results of the development sought above, such as obtaining further identified records), and readjudicate the claims, including entitlement to a TDIU rating prior to July 10, 2020. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.