Citation Nr: 21022583 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 12-27 607 DATE: April 16, 2021 REMANDED Entitlement to a rating higher than 20 percent for multilevel degenerative disc disease, lumbar spine, is remanded. Entitlement to ratings higher than 10 percent for bilateral lower extremity radiculopathy 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 had active duty service in the United States Army from July 1974 to June 1977. Entitlement to a rating higher than 20 percent for multilevel degenerative disc disease, lumbar spine, is remanded; entitlement to ratings higher than 10 percent for bilateral lower extremity radiculopathy is remanded; and entitlement to a TDIU is remanded. A July 2018 Board decision granted an initial 20 percent rating for multilevel degenerative disc disease, lumbar spine, and remanded the Veteran’s claim for a TDIU for referral to the Director of Compensation Service for consideration of whether a TDIU was warranted on an extraschedular basis from September 8, 2008. The Veteran appealed the July 2018 Board decision to the Court of Appeals for Veterans Claims (CAVC). In a January 2020 Memorandum decision, the Court found that the December 2016 VA examination the Board relied on in its decision was inadequate. The Court further found that the Board did not provide sufficient reasons and bases as to why it “no longer ha[d] jurisdiction over the [Veteran’s] radiculopathy.” Regarding the Veteran’s claim for an increased rating for his lumbar spine, because the December 2016 VA examination report is inadequate for adjudication purposes, remand is required. In addition, regarding the propriety of the Veteran’s bilateral lower extremity radiculopathy ratings, the Board finds that it does currently have jurisdiction over these claims. They are borne out of an initial rating claim for the lumbar spine. Specifically, in December 2009, the Veteran was granted service connection for his lumbar spine and assigned a rating of 20 percent. At the time of the June 2009 VA examination, the Veteran reported radiating pain, but radiculopathy was not demonstrated. In August 2010, he filed a notice of disagreement (NOD) and stated: I believe the 20 percent rating I received for my service-connected back injury is inadequate. At the time of evaluation, I had taken my usual amount of Vicodin which allows me much greater range of motion – the range of motion noted in the examination is far more than it would be without my pain medication – I believe that I warrant a higher rating. In August 2012, the RO issued a statement of the case (SOC). The Veteran then filed a VA Form 9 indicating that his lumbar spine had worsened. As a result, in October 2016, the Board remanded the Veteran’s claim to afford him another VA examination. On VA examination in December 2016, bilateral radiculopathy was demonstrated. A February 2017 rating decision then separately granted service connection for bilateral lower extremity radiculopathy. Although the Veteran did not specifically appeal that decision, the Board acknowledges that the rating schedule, in Note (1) states that a Veteran should be evaluated for any associated objective neurological abnormalities associated with his lumbar spine disability. Thus, because the neurological abnormalities were borne from the initial ratings claim for the back and the rating schedule states that the Veteran should be evaluated for these abnormalities, the Board finds that jurisdiction is proper. The Board is additionally remanding these claims as they are inextricably intertwined with the issue of an increased rating for the Veteran’s lumbar spine. Finally, pursuant to the July 2018 Board remand, the RO provided the Veteran with notice regarding what is required for a TDIU. The February 2019 letter requested that he complete and return the attached VA Form 21-8940. However, to date, the Veteran has not submitted the past employment information requested. As a result, the RO did not refer the Veteran’s claim for extraschedular consideration stating that the VA Form 21-8940 was “required to further consider [the Veteran’s] claim for IU.” However, this is inaccurate. Regardless, the issue of TDIU is also inextricably intertwined with the Veteran’s increased rating claim for his back. As such, it must also be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also 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 at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Again, invite the Veteran to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Any requests made to the Veteran to furnish such application should be documented in the claims file. The Veteran is advised that the VA Form 21-8940 contains helpful information necessary to adjudicate his claim. Failure to complete such form may be detrimental to his claim. 3. Following completion of the above, refer the TDIU claim to the Director, Compensation Service, for consideration on whether a TDIU is warranted on an extraschedular basis from September 8, 2008. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b).   4. Following completion of the above, readjudicate the Veteran’s claims including his claims for increased ratings for his bilateral lower extremity radiculopathy. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.