Citation Nr: 21024608 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-19 668 DATE: April 23, 2021 REMANDED Entitlement to a rating in excess of 20 percent from December 21, 2016 for radiculopathy of the right lower extremity is remanded. Entitlement to a rating in excess of 20 percent from December 21, 2016 for radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 20 percent from December 21, 2016 for femoral radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 20 percent from December 21, 2016 for lumbar spine strain with disc herniation is remanded. Entitlement to service connection for a urinary condition is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1974 to June 1976 and from September 1978 to September 1982. During his June 2020 Board hearing, the Veteran stated that he was not appealing the ratings for right lower extremity radiculopathy, left lower extremity radiculopathy, and lumbar spine strain with disc herniation prior to December 21, 2016. The undersigned verified that the representative had explained the ramifications of the withdrawal of the appeal pertaining to the staged rating prior to December 21, 2016 for these disabilities; therefore, the Board accepts the withdrawal and Veteran’s request to limit the appeal to the period from December 21, 2016. Although the Agency of Original Jurisdiction (AOJ) did not certify the issue of TDIU as part of this appeal, the Veteran asserted during his June 2020 Board hearing that he was unemployable due to his service-connected conditions. The Veteran stated that service-connected back disability along with other service-connected disabilities caused unemployability. Therefore, the Board has jurisdiction to consider the issue of entitlement to a TDIU as part of his claim for an increased rating for lumbar spine strain with disc herniation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to a higher rating for radiculopathy of the bilateral lower extremities and femoral radiculopathy of the left lower extremity is remanded. Unfortunately, a remand is required in this case. The Veteran was afforded new VA examinations in March 2020 and September 2020 addressing his bilateral lower extremity radiculopathy. The AOJ has not considered this evidence in adjudicating the Veteran’s claims. However, the Board has not at this time solicited a waiver of initial AOJ consideration of this evidence as the Board has determined, as discussed in greater detail below, that a remand of the Veteran’s lumbar spine claim is in order. Evidence that is also potentially relevant to the increased rating claims for the Veteran’s bilateral lower extremity disabilities may be obtained on remand upon reexamination of the Veteran’s lumbar spine. As such, adjudicatory action by the Board on these matters is deferred at this time. Further, the AOJ will have an opportunity to consider the additional evidence referenced herein and any other additional evidence added to the record since the February 2017 statement of the case in readjudicating the Veteran’s claims in any subsequently issued supplemental statement of the case (SSOC). 2. Entitlement to a rating in excess of 20 percent from December 21, 2016 for lumbar spine strain with disc herniation is remanded. During his June 2020 Board hearing, the Veteran asserted that his back disability increased in severity since the Veteran was last examined by VA in March 2020. He specifically asserted that his back disability was manifested by constant pain and that it caused decreased range of motion. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his back disability. 3. Service connection for a urinary condition is remanded. The Veteran contends that his urinary condition, diagnosed as urge incontinence of urine and dribbling of urine in November 2016 and as urinary tract infectious disease in January 2017, are related to his service-connected lumbar spine strain with disc herniation. During his June 2020 Board hearing, the Veteran testified that he has had difficulty voiding for years and that he believed it was related to his service-connected back disability. In March 2014, the Veteran underwent a VA examination for the male reproductive system. A voiding dysfunction was noted and attributed to the Veteran’s non-service-connected diabetes mellitus: however, a VA medical opinion was not issued, and no rationale was provided. Therefore, the Board finds that a VA examination should be scheduled to determine the etiology of the Veteran’s urinary condition. 4. Entitlement to a TDIU is remanded. As the Veteran’s claim for a TDIU potentially is impacted by a determination on the issue of entitlement to an increased rating for his lumbar spine strain with disc herniation, Board appellate review of this issue is deferred pending completion of this inextricably intertwined service connection issue. 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 strain with disc herniation. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s lumbar strain with disc herniation alone and discuss the effect of the Veteran’s lumbar strain with disc herniation on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment 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. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s urinary condition. Based on a review of the record and any examination findings, the examiner should provide an opinion as to whether: (a.) It is at least as likely as not (50 percent or greater probability) that the Veteran’s urinary condition is etiologically related to his active service. (b.) It is at least as likely as not (50 percent probability or greater) that any current urinary condition is proximately due to, or the result of, the Veteran’s service-connected lumbar spine strain with disc herniation. (c.) It is at least as likely as not (50 percent probability or greater) that any current urinary condition is aggravated beyond the natural progress of the disease by the Veteran’s service-connected lumbar spine strain with disc herniation. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion regarding symptoms 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). 3. After undertaking any additional indicated action, readjudicate the Veteran’s claims, and furnish him an SSOC with consideration of all of the relevant evidence added to the record since the September 2017 SOC, including the March 2020 and September 2020 VA examinations, and give him appropriate time to respond before returning the file to the Board for further appellate consideration of these claims. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.