Citation Nr: 21013062 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-02 336 DATE: March 8, 2021 REMANDED Entitlement to an increased rating greater than 20 percent for the Veteran’s service-connected radiculopathy, left lower extremity is remanded. Entitlement to a total disability based on individual unemployability (“TDIU”) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1997 to April 2001. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from May 2016 rating decision issued by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is associated with the record. 1. Entitlement to an increased rating greater than 20 percent for the Veteran’s service-connected radiculopathy, left lower extremity is remanded. At his Board hearing in January 2021, the Veteran asserted that his service-connected disability of radiculopathy of left lower extremity has increased in severity because he feels increased numbness, burning sensation and less strength in his left leg; and during flare ups he has to be on bed rest two to three days. The Veteran pointed out that he is getting treatment from a private clinic, Berkshire Medical Center in Pittsfield, MA, and received two radiofrequency treatments last year. The private treatment records from Berkshire Medical Center indicate that the Veteran underwent lumbar radiofrequency in July 2020 and lumbar facet blockade in October 2020. In addition, the records also indicate that the Veteran has been receiving lumbar transforaminal selective nerve root injections. The Board notes that the Veteran was afforded a VA examination for his radiculopathy of left lower extremity in April 2016. The examiner noted decreased sensation in left lower leg and left foot drop. The private treatment record from January 2019 at Berkshire Medical Center noted the Veteran’s gait was antalgic favoring the left leg, and he had to drop his left leg to the floor because it becomes numb. The Board also notes that there is a conflicting VA opinion in September 2016 email from Veterans Health Administration pointing out that there are less chances of foot drop because there is no other VA treatment record noting this, except for April 2016 VA examination. Hence, a remand is warranted for affording the Veteran a new VA examination for evaluating the current severity of his service-connected radiculopathy of left lower extremity and a clarification if the Veteran displays left foot drop as a result of his radiculopathy; and to take all necessary actions for obtaining all outstanding VA and private medical treatment records. 2. Entitlement to a total disability based on individual unemployability (“TDIU”) is remanded. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU can either overtly stated or implied by a fair reading of the claim or of the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU should be considered based on the appealed increased rating claim. See Rice 22 Vet. App. at 453 (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). In this case, the record shows that the Veteran has not independently or separately asserted entitlement to TDIU. But the Board finds that there is sufficient evidence in the record that raise the issue of implied TDIU. At January 2021 Board hearing, the Veteran testified that he has not been working since February 2020 due to his service-connected disabilities including the disability of radiculopathy of left lower extremity. Also, the Veteran statements from December 2015 indicate that he had financial hardship and lack of work due to his service-connected disabilities. Hence, the Board concludes that a claim for TDIU has reasonably been raised by the record, and a remand is warranted for further development of claim of entitlement to TDIU. The matters are REMANDED for the following actions: 1. Send appropriate notices and request the Veteran to complete the required form for substantiating a claim of entitlement to TDIU. Request that the Veteran to provide specific dates of employments and income information for each employer. 2. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 3. Schedule the Veteran for a new VA examination to determine the current severity of his service-connected radiculopathy of lower extremity. Then, forward the claims file and a copy of this remand to the examiner. 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 is advised to describe the level of severity of the Veteran’s radiculopathy as mild, moderate, moderately severe, severe with marked muscular atrophy or complete; along with an explanation of reasons of choosing a particular level of severity, and what sort of additional impairment the examiner expects to see for the next higher level. The examiner should also clarify if the Veteran displays foot drop as a result of his radiculopathy, since the same has been noted in April 2016 VA examination. There is evidence in the record from January 2019 treatment at Berkshire Medical Center noting the Veteran’s gait was antalgic favoring the left leg and he has to drop his left leg to the floor because it becomes numb. 4. A clear rationale must be provided for all opinions expressed in compliance with this remand. The examiner must review all the pertinent evidence in private and VA treatment records; and consider and discuss the Veteran’s lay statements. The examiner must 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 possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 5. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655. If the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 6. Thereafter, readjudicate the claim on appeal including the claim of entitlement to TDIU. If the benefit sought remains denied issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matters to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.