Citation Nr: 21012832 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-58 969 DATE: March 5, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) prior to January 24, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1957 to May 1959. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Milwaukee, Wisconsin. In his October 2017 substantive appeal (VA Form 9), the Veteran requested a Board hearing. In December 2020, the Veteran was notified by letter that he was scheduled for a video hearing in February 2021. In January 2021 and February 2021 correspondence, the Veteran and his representative requested to withdraw his hearing request. Thus, the hearing request is deemed withdrawn and the Board will proceed with adjudication. 38 C.F.R. § 20.704(d). The issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). The Board notes that a May 2019 rating decision awarded a TDIU, effective January 24, 2019. However, the Veteran filed the instant claim in November 2016 and consideration of a TDIU prior to January 24, 2019 remains within the Board’s jurisdiction. Harper v. Wilkie, 30 Vet. App. 356 (2020). Increased Rating - Radiculopathy The Veteran was most recently afforded an examination for his radiculopathy in May 2019. In his August 2019 appellate brief, it was indicated that the Veteran’s left and right lower extremity radiculopathy had worsened since his VA examination. Specifically, the Veteran’s representative stated the Veteran contended he suffered from worsening symptoms, and that the conditions were far worse than currently evaluated. As the above evidence indicates a possible worsening of that the Veteran’s left lower extremity and right lower extremity radiculopathy since his last VA examination, an additional examination should be afforded to gauge the current level of severity of his disabilities. Entitlement to a TDIU Prior to January 24, 2019 Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claims of entitlement to increased ratings for left lower extremity and right lower extremity radiculopathy. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left lower extremity and right lower extremity radiculopathy. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran’s service-connected left lower extremity and right lower extremity radiculopathy. The examiner should also comment upon the functional impairment resulting from the Veteran's left lower extremity and right lower extremity radiculopathy. A rationale for any opinion offered should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.